COLUMBIA  LIBRARIES  OFFSjTE 

HEALTH  SCIENCES  STANDARD 


HX64073246 

RA395.A3  M69  The  doctor  in  court 


RECAP 


ii€ 


te^H=-:  £=-_  =  iiii;  7 


;^^i>^s.a^ 


Y\fc% 


Columtita  WlnibtrSit^ 
tntJieCttpofiSeiBgorfe 

College  of  l^pskimi  anb  ^urgeoniEi 


S^eferente  l^ibrarp 


THE  DOCTOR  IN  COURT 


THE 

DOCTOR  IN  COURT 


BY 

EDWIN  VALENTINE  MITCHELL,  LL.B. 

OF  THE  MASSACHUSETTS  BAE 


NEW  YORK 
REBMAN  COMPANY 

HERALD    SQUARE    BUILDING 

141-145    West    36th    Street 


Copyright,  1913,  by 

REBMAN    COMPANY 

New  York 


All  Rights  reserved 


PRINTED  IN  AMERICA 


PREFATORY  NOTE 

The  purpose  of  the  following  pages  is  to  give  a 
sketch  of  the  impression  of  the  law  as  it  applies  to 
physicians  and  snrgeons.  It  is  not  a  work  on  the 
correlation  of  law  and  medicine,  popularly  called 
medical  jurisprudence.  It  is  an  attempt  to  put 
briefly  and  in  high  relief  the  general  principles  of 
law  relating  to  the  medical  profession,  and  the  rea- 
sons for  those  principles.  The  questions  consid- 
ered are  rapidly  becoming  of  more  consequence. 
In  the  feverish  and  intemperate  haste  with  which 
persons  nowadays  resort  to  the  courts  for  the  re- 
covery of  damages,  the  physician  and  surgeon  has 
not  escaped.  A  knowledge  of  his  duties  and  legal 
obligations  will  help  him  to  foresee  and  forestall 
unpleasant  eventualities  likely  to  grow  out  of  his 
relations  with  his  patient. 

E.  Y.  M. 
Boston,  Mass. 


Digitized  by  the  Internet  Archive 

in  2010  with  funding  from 

Open  Knowledge  Commons 


http://www.archive.org/details/doctorincourt1913mitc 


CONTENTS 

CHAPTER  PAGE 

I.    Professional  Evidence 1 

11.  The  Contract  of  the  Profession  ....  22 

III.  Civil  Responsibility  of  the  Profession  .     .  47 

IV.  Remuneration 78 

V.    Confidential  Communications 96 

VI.    The  Criminal  Responsibility  of  the   Pro- 
fession      108 

VII.    Qualifications 125 

Table  of  Cases  Cited  145 

General  Index 149 


THE  DOCTOR  IN  COURT 

CHAPTER   I 

PEOFESSIONAL   EVIDENCE 

The  physician  or  surgeon,  no  matter  whether 
his  practice  be  general  or  special,  is  certain  to  be 
called  upon  to  give  medical  evidence  in  court.  This 
cannot  be  avoided,  as  cases  are  constantly  arising 
which  involve  questions  of  personal  injuries,  of 
mental  capacity,  and  of  death,  either  accidental, 
homicidal  or  suicidal.  The  doctor  has  no  choice  in 
the  matter.  He  cannot  tell  in  what  case  he  will  be 
summoned  into  court  to  testify.  If  called  he  must 
go.  Because  of  the  publicity  of  court  proceedings 
a  reputation  may  be  won  or  lost.  Consequently  it 
is  of  great  importance  for  a  doctor  to  know  his  re- 
lations to  the  court  and  have  his  eyes  open  to  the 
pitfalls  set  for  him  by  the  skilful  cross-examiner. 

The  witnesses  giving  sworn  evidence  before  a 
tribunal  of  justice  may  be  placed  in  two  groups: 
the  accidental  or  non-expert  witness,  and  the  pro- 
fessional or  expert  witness.  It  is  manifest  the  doc- 
tor may  be  called  to  give  testimony  in  either  ca- 
pacity. The  greater  number  of  facts  investigated 
in  our  courts  are  testified  to  by  the  first  group, 

1 


2  The  Doctor  ii^  Couet 

the  jury  drawing  inferences  or  conclusions  from 
the  facts  as  given  by  these  witnesses.  Back  in  the 
early  years  of  our  courts  this  was  the  sole  type 
of  testimony,  for  the  reason  that  it  was  the  only 
kind  necessary  for  a  jury  to  render  just  decisions. 
Yet  with  the  advancement  of  learning  it  became 
visible  that  facts  and  natural  laws  existed  concern- 
ing which  the  average  man  or  jury  knew  but  little. 
It  was  necessary  to  have  the  aid  of  one  who  could 
correctly  interpret  these  facts.  So  it  came  to  pass 
that  the  expert  was  evolved  to  assist  the  court  and 
jury  to  a  true  conclusion  as  to  these  facts.  Since 
that  time  the  expert  witness 's  importance  as  an  in- 
strumentality for  the  dispensation  of  justice  has 
increased  immensely.  The  discoveries  and  inven- 
tions of  science  have  widened  his  field  of  useful- 
ness inimitably. 

Now,  the  examination  of  a  witness  in  court  con- 
sists of  the  direct  or  examination-in-chief,  the  cross- 
examination,  and  the  re-direct  examination.  The 
examination-in-chief  is  where  the  side  calling  the 
witness  into  court  questions  him  as  to  his  knowl- 
edge of  the  facts  in  issue,  or,  in  the  case  of  an  ex- 
pert, where  the  side  for  which  he  is  testifying  puts 
hypothetical  questions  to  him  for  his  opinion 
thereon.  The  cross-examination  is  conducted  by 
the  opposing  counsel.  Its  purpose  is  to  test  the 
truth  of  the  evidence  given  upon  the  examination- 
in-chief,  and  the  prejudice,  memory,  knowledge,  in- 
terest, etc.,  of  the  witness.  The  importance  of  the 
right  of  cross-examination  can  be  seen  from  the 


Peofessional  Evidence  3 

very  nature  of  our  system  of  legal  procedure ;  for 
example,  hearsay  evidence,  where  a  witness  testi- 
fies as  to  what  another  said,  is  inadmissible  because 
the  person  making  the  statement  was  not  subject 
to  cross-examination;  and  for  the  same  reason 
opinions  expressed  in  the  works  of  scientific 
writers  are  not  generally  allowed.  (Other  reasons 
for  excluding  hearsay  evidence  are  that  the  person 
making  the  statement  was  not  under  oath  at  the 
time,  nor  was  he  before  the  jury  so  that  they  could 
pass  on  his  veracity  as  a  witness. 

There  are  many  exceptions  to  the  hearsay  rule. 
The  one  with  which  the  physician  is  most  concerned 
is  the  rule  admitting  dying  declarations,  provided 
the  declarant  knew  or  believed  he  was  about  to  die 
when  he  made  the  statement  and  his  death  is  the 
subject  of  the  indictment.  An  illustration  of  the 
serious  consequences  which  might  attend  the  cur- 
tailing of  one's  right  to  the  cross-examination  of 
witnesses  is  furnished  by  the  very  late  New  York 
case  of  the  People  v.  Lustig  (206  K  Y.,  162).  The 
prisoner  was  indicted  for  poisoning  his  wife  with 
strychnine  in  order  to  get  the  insurance  on  her 
life.  There  was  a  divergence  in  the  medical  opin- 
ions as  to  the  cause  of  death.  The  chief  medical 
witness  for  the  prosecution  gave  evidence  that  his 
toxicological  tests  had  revealed  one  one-hundredth 
of  a  grain  of  strychnine  in  the  liver  of  the  deceased. 
The  physician  for  the  defence  testified  that  the  re- 
sult of  his  laboratory  work  showed  no  traces  of 
strychnine.    With  the  object  of  showing  the  worth- 


4  The  Doctoe  in  Coueit 

lessness  of  Ms  own  tests  the  prosecution's  expert 
was  asked  by  the  prisoner's  counsel  to  describe  his 
tests.  The  accused's  fate  depended  upon  the  ac- 
curacy of  the  physician's  work.  Did  the  woman 
die  by  poison f  The  issue  was  close;  a  human  life 
was  in  the  balance.  Yet  the  court  refused  to  permit 
the  witness  to  answer.  The  higher  court  justly  held 
this  to  be  serious  and  reversible  error.  A  new 
trial  was  granted. 

Immediately  on  being  called  to  the  stand  for  his 
examination  the  oath  is  administered  to  the  witness 
which  binds  him  if  he  assents,  to  tell '  ^  the  truth,  the 
whole  truth,  and  nothing  but  the  truth."  It  has 
been  said  that  expert  testimony  should  be  the  color- 
less light  of  science  brought  to  bear  upon  any  case 
where  such  testimony  is  necessary.  ' '  There  should 
be  no  half  truths  uttered,  and  suppression  of  the 
whole  truth  is  in  the  nature  of  false  testimony." 
While  such  evidence  should  be  impartial  and  un- 
prejudiced, it  is  often  thought  by  the  expert  that 
to  benefit  the  side  calling  him  he  must  be  absolutely 
sure  that  he  is  right.  A  conscientious  and  unpur- 
cha sable  expert  will,  of  course,  have  the  courage  of 
his  convictions.  Testimony  given  in  a  convincing 
manner  undoubtedly  carries  weight,  but  so  many 
theories  in  medicine  and  surgery  have  been  uj^set 
that  it  is  best  not  to  be  too  confident. 

That  the  skilled  witness  may  be  admirably 
qualified  to  give  evidence  and  at  the  same  time  be 
modest  and  not  at  all  sure  of  the  truth  of  his  opin- 
ion, is  illustrated  by  the  following:   Not  long  ago 


Pkofessioital  Evidence  5 

a  captain  in  tlie  United  States  army  was  called  as 
a  skilled  witness  in  a  shooting  case.  The  captain 
astonished  all  by  refusing  to  swear  he  could  tell 
the  truth.  The  clerk  repeated  the  oath ;  the  captain 
did  not  assent;  he  said,  ^^No,  sir.''  It  was  not  a 
case  of  obstinacy,  because  the  witness  was  willing 
to  do  anything  he  could  to  assist  the  court  and  jury 
in  getting  at  the  facts.  Nevertheless,  he  refused 
to  swear  that  his  conclusions  were  correct. 

The  judge  was  puzzled,  and  the  captain  made 
the  following  explanation  of  his  refusal  to  assent  to 
the  oath:  ^^I  decline  to  swear  that  the  expert  testi- 
mony which  I  may  give  is  the  truth.  All  that  I 
can  swear  to  is  that  to  the  best  of  my  ability  and 
understanding  and  judgment,  after  years  of  ex- 
perience and  experiments  in  the  matter  of  small 
firearms,  certain  conditions  produce  certain  results. 
But  I  cannot  swear  such  findings  are  the  truth." 

He  was  accepted  as  a  witness.  The  effect  of 
what  he  said  on  the  jury  can  be  imagined.  Here 
was  a  man  who  was  not  positive  that  his  opinion 
was  right,  and  was  willing  to  say  so,  regardless  of 
its  effect  on  the  side  that  called  him.  The  testi- 
mony of  such  a  man  was  worthy  of  serious  con- 
sideration. This  attitude  can  be  strongly  recom- 
mended to  medical  witnesses  when  they  take  the 
stand. 

It  cannot  be  denied  that  expert  testimony  is 
winked  at.  It  should  have  high  rank  as  a  factor 
in  determining  the  outcome  of  cases,  yet  we  often 
see  it  go  for  naught.    Some  judges  go  so  far  as 


6  The  Doctor  in  Court 

to  tell  juries  that  it  is  of  little  probative  value. 
Thus  at  the  trial  of  William  Palmer,  at  the  Old 
Bailey  in  1856,  for  the  poisoning  of  a  man  named 
Cook,  Lord  Chief  Justice  Campbell,  in  the  course 
of  his  summary,  said  to  the  jury:  '^With  regard 
to  the  medical  witnesses,  I  must  observe  that,  al- 
though there  were  among  them  gentlemen  of  high 
honor,  consummate  integrity,  and  profound  scien- 
tific knowledge,  who  came  here  with  a  sincere  wish 
to  speak  the  truth,  there  were  also  gentlemen  whose 
object  was  to  procure  an  acquittal  of  the  prisoner. 
It  is,  in  my  opinion,  indispensable  to  the  adminis- 
tration of  justice  that  a  witness  should  not  be  turned 
into  an  advocate,  nor  an  advocate  into  a  witness. '  ^ 

In  a  New  York  case  (Ferguson  v.  Hubbell,  97 
K  Y.,  507  at  514)  the  court  said:  ^^ Better  results 
will  generally  be  reached  by  taking  the  impartial, 
unbiased  judgments  of  twelve  jurors  of  common 
sense  and  common  experience  than  can  be  obtained 
by  taking  the  opinions  of  experts,  if  not  generally 
hired,  at  least  friendly,  whose  opinions  cannot  fail 
generally  to  be  warped  by  a  desire  to  promote  the 
cause  in  which  they  are  enlisted.'' 

Despite  this  judicial  denunciation  of  expert 
testimony  innumerable  instances  of  the  courts 
recognizing  the  knowledge  and  experience  of  med- 
ical witnesses  as  of  great  value  might  be  cited.  In 
many  cases  it  is  absolutely  indispensable  because 
of  the  rule  of  law  requiring  the  production  of  the 
best  evidence.  Who  but  a  toxicologist  can  give  a 
correct  opinion  as  to  whether  or  not  a  man  came 


Pkofessional  Evidence  7 

to  his  death  by  poisoning  "f  From  the  position 
which  experts  now  hold  in  legal  proceedings  it  is 
not  unnatural  that  a  great  hue  and  cry  should  be 
raised  to  abolish  a  system  which  permits  such 
farces  as  the  Thaw  trial  to  be  enacted  in  our  courts. 
But  remove  the  expert  to  a  non-partisan  position 
by  having  him  appointed  by  the  court  and  great 
distance  will  be  covered  in  the  direction  of  genuine 
reform.  When  juries  come  to  look  upon  the  ex- 
pert more  as  an  officer  or  servant  of  the  court  than 
as  one  giving  evidence  to  fortify  either  side  of  a 
case,  then  the  profession  will  be  treated  with 
greater  respect  and  not  held  up  to  ridicule.  Like 
the  army  captain,  let  the  medical  witness  have  con- 
stant regard  to  the  serious  obligation  of  his  oath, 
and  much  of  the  present  misunderstanding  of  the 
expert  will  be  dispelled. 

Naturally  when  a  skilled  witness  is  called  to  the 
stand  to  give  evidence,  the  question  at  once  arises 
as  to  whether  he  is  in  fact  an  expert.  Accordingly 
the  foundation  for  an  expert  opinion  is  laid  by  qual- 
ifying the  witness  as  such.  The  doctor  is  inter- 
rogated as  to  his  education,  experience,  etc.,  after 
which,  and  before  going  on  with  his  testimony, 
he  may  be  taken  in  hand  and  cross-examined  as  to 
his  qualifications.  The  court  then  decides  whether 
he  shall  be  permitted  to  testify.  In  other  words, 
the  presiding  justice  rules  upon  the  question  of  the 
doctor's  competency  as  a  witness. 

The  law  does  not  recognize  any  particular 
school  or  class  of  medical  practitioners  as  being 


8  The  Doctoe  in  Court 

better  qualified  than  another  for  skilled  witnesses. 
The  criterion  is  knowledge.  This  knowledge  may 
be  gained  by  reading  and  studying  the  books,  or 
by  experience,  or  both.  The  present  low  status  of 
the  expert  is  also  attributed  to  the  low  standards 
set  for  experts,  which,  it  is  said  permit  the  pseudo- 
expert  to  thrust  himself  upon  the  courts.  Civil 
service  examinations  have  been  suggested  as  a  rem- 
edy, but  if,  as  recommended,  medical  witnesses 
were  chosen  by  the  court,  it  would  insure  science 
being  interpreted  by  experts. 

In  the  direct  examination  the  witness  should 
state  the  facts  simply,  without  qualifying  words. 
If  he  says  the  patient  suffered  from  a  *^very  severe 
nervous  shock,''  this  is  certain  to  be  picked  up 
on  the  cross-examination.  It  is  sometimes  neces- 
sary to  use  technical  words  in  order  to  complete 
the  record  of  the  court,  so  that  another  medical 
witness  coming  into  court  at  some  later  time  can 
tell  exactly  what  was  meant.  When  such  terms  are 
essential  be  sure  to  explain  them  in  plain  words 
to  the  jury.  Taylor  tells  of  a  case  where  a  doctor 
testified  ^Hhat  on  examining  the  prosecutor  he 
found  him  suffering  from  a  severe  contusion  of  the 
integuments  under  the  left  orbit,  with  great  extrav- 
asation of  blood  and  ecchymosis  in  the  surround- 
ing cellular  tissue,  which  was  in  a  tumefied  state. 
There  is  also  considerable '  abrasion  of  the  cuti- 
cle." On  being  asked  if  he  meant  a  black  eye, 
he  said  ^^yes."  The  doctor,  was  laughed  out  of 
court.    If  this  witness  had  stated  the  patient  had 


Pkofessional  Evidence  9 

a  black  eye,  then,  if  pressed  and  asked  what  he 
meant  by  a  black  eye,  had  given  a  technical  de- 
scription, that  would  in  all  probability  have  re- 
lieved him  of  further  examination. 

Where,  however,  the  doctor  is  acting  purely  as 
an  expert  it  may  not  be  so  easy  a  task  to  give 
answers  wholly  devoid  of  medical  phraseology. 
Dr.  Keynold  Webb  Wilcox  in  his  inaugural  address 
as  president  of  the  Society  of  Medical  Jurispru- 
dence said:  ^'To  a  man  who  is  a  specialist,  the 
demand  which  almost  invariably  occurs,  that  his 
scientific  analysis  of  a  situation  be  translated  into 
the  vernacular  of  every-day  speech,  is  maddening. 
The  popular  idea  that  present-day  physicians  de- 
light in  amplifying  a  medical  vocabulary  for  the 
purpose  of  hearing  lengthy  words,  is  far  from 
being  founded  upon  fact.  The  tendency  is  in  ex- 
actly the  opposite  direction. 

**No  one  who  knows  anything  about  literature 
would  expect  the  translator  of  an  idiomatic  bit  of 
French  verse  to  obtain  in  English  exactly  the  same 
meaning.  Yet  medical  men  of  international  repu- 
tation are  asked  to  describe  a  state  of  mental  dis- 
order in  one-syllable  words,  conceived  by  our  an- 
cestors, in  an  era  when  it  was  scarcely  realized 
that  the  brain  was  part  of  the  human  system.  I 
do  not  advocate  having  the  experts^  testimony 
tuned  so  high  that  the  jury  and  judge  are  in  the 
dark,  but  it  does  seem  that  the  means  should  be 
taken  to  impart  to  them  the  rudiments  of  medical 
phraseology. ' ' 


10  The  Doctor  in  Court 

Efficiency  in  tlie  high  art  of  cross-examination 
is  a  matter  upon  which  a  great  many  lawyers  pride 
themselves.  Perhaps  no  greater  opportunity  for 
the  trial  lawyer  to  distinguish  himself  is  afforded 
than  the  cross-examination  of  expert  witnesses. 
Extended  preparation  with  the  object  of  undermi- 
ning the  testimony  of  medical  witnesses  is  often 
made  under  the  tutorship  of  other  experts.  In- 
geniously contrived  questions  are  set  for  the  wit- 
ness. So  the  doctor  must  beware  the  cross-exami- 
nation. 

It  is  not  presumed  here  for  a  minute  that  the 
physician  would  testify  falsely.  The  lying  witness 
is  generally  very  easy  to  corner.  Even  the  clev- 
erest will  make  a  fatal  slip  sooner  or  later.  As  a 
matter  of  fact,  the  cross-examiner  must  treat  the 
medical  witness 's  testimony  with  skepticism.  This 
is  the  attitude  of  the  advocate's  mind  in  approach- 
ing any  witness  if  the  witness  has  given  testimony 
conflicting  with  that  already  advanced  or  to  be 
offered  by  the  examiner's  side.  It  is  a  mistake  to 
believe  that  when  the  lawyer  rises  for  the  cross- 
examination  his  sole  object  is  to  make  the  witness 
out  a  liar.  He  will  undoubtedly  try  to  prove  his 
own  case  from  the  lips  of  the  witness  or  some 
theory  not  incompatible  therewith.  This  method  of 
turning  testimony  in  favor  of  the  questioner 's  side 
is  followed  by  the  majority  of  cross-examiners.  It 
does  not  mean  that  he  is  trying  to  trip  the  witness,- 
because  what  he  seeks  to  bring  out  has  in  all  prob- 
ability not  been  touched  on  in  the  examination-in- 


Pkofessiokal  Evidence  11 

chief.  Naturally  an  attorney  is  not  going  to  ask 
his  own  witnesses  for  facts  which  he  knows  are 
damaging  to  his  cause.  He  leaves  them  for  the  op- 
position to  bring  out ;  it  is  for  these  the  cross-ques- 
tioner seeks. 

For  illustration :  In  a  suit  for  personal  injuries 
against  a  railroad  company,  where  the  plaintiff  suf- 
fered a  fracture  of  his  leg  which  resulted  in  a  short- 
ening of  the  limb,  the  attending  physician  testified 
that  ^'the  condition  was  a  simple  transverse  frac- 
ture at  the  junction  of  the  middle  and  upper  third 
of  the  femur.  That  after  reduction  and  the  appli- 
cation of  dressings  an  X-ray  plate  showed  a  per- 
fect anterioposterior  alignment. ''  A  liberal  ver- 
dict was  returned  for  the  plaintiff.  The  doctor 
subsequently  in  conversation  with  a  friend  said 
that  he  had  other  X-ray  plates  taken  at  various 
angles  showing  there  was  an  overlapping  of  the 
ends  of  the  bones  due  to  his  improper  application 
of  dressings.  Here  a  proper  cross-examination 
would  have  brought  out  this  fact  and  damages 
would  have  been  greatly  mitigated.  By  failure  to 
properly  cross-examine  the  witness  the  defendant 
was  paying  for  the  doctor's  carelessness. 

A  common  tactic  of  the  trial  lawyer  in  cross- 
examining  a  witness  is  to  attempt  the  witness's 
downfall  by  showing  that  the  witness  is  "inter- 
ested" in  the  outcome  of  the  case.  The  physician 
is  asked  how  he  happened  to  come  into  the  case. 
He  is  carefully  examined  as  to  whether  he  has  re- 
ceived compensation  for  his  services  in  attending 


12  The  Doctor  ii^  Court 

the  patient,  or  how  much  he  is  to  receive  for  ap- 
pearing as  an  expert.  If  an  unsatisfactory  reply 
is  given,  the  attorney  may  nse  the  fruits  of  such  a 
line  of  questioning  in  his  argument  to  discount  and 
nullify  the  physician's  testimony.  The  advocate 
will  try  to  persuade  the  jury  that  the  doctor's  being 
paid  is  a  contingency  dependent  upon  a  favorable 
verdict,  and  that  the  testimony  of  one  so  interested 
must  necessarily  be  highly  colored. 

Many  lawyers  believe  a  most  cursory  reading 
of  medical  authorities  will  qualify  them  to  success- 
fully cross-question  the  greatest  specialists  upon 
their  own  subjects.  A  true  expert  can  easily  de- 
fend himself  against  the  attacks  of  such  an  antag- 
onist, but  no  matter  how  strongly  he  may  be 
tempted  to  strike  back  let  him  resist  the  impulse. 
It  is  poor  taste  to  engage  in  repartee.  Medical  wit- 
nesses in  general  have  been  hurt  by  the  physician 
not  long  out  of  medical  school  matching  wits  and 
bandying  words  with  counsel.  The  latter  has  the 
advantage  from  his  position  as  questioner.  Nat- 
urally the  lawyer  knows  more  about  the  art  of 
cross-examination  than  the  average  witness ;  for  it 
is  part  of  the  practice  of  his  profession,  just  as  it 
is  part  of  the  physician's  to  prescribe  for  illnesses. 
True,  the  advocate  frequently  runs  himself  on 
his  own  sword;  but  the  average  lawyer  is  more 
proficient  in  the  art  than  the  medical  witness. 

When  the  physician  is  tormented  by  a  member 
of  the  Spanish  Inquisition  school  of  cross-exami- 


Pkofessional  Evidence  13 

nation,  lie  should  above  all  things  keep  his  temper. 
This  species  of  examiner  is  not  half  as  deadly  as 
the  quiet,  friendly,  persuasive  type.  But  it  is  im- 
portant always  to  be  cool  while  on  the  stand.  If 
a  cross-examiner  sees  that  he  can  get  the  witness 
angry,  he  will  do  all  in  his  power  to  bring  this 
about.  For  the  witness  then  thinks  more  of  a 
means  of  retaliation  and  not  so  much  of  what  he 
is  saying,  thus  making  it  easier  for  the  examiner 
to  trap  him  in  a  statement  carelessly  inconsistent, 
or  the  witness  may  utter  an  unguarded  statement. 

In  giving  his  opinion  the  expert  cannot  usurp 
the  right  of  the  jury  to  judge  the  facts.  The  ex- 
pert is  not  to  say  which  witnesses  are  telling  the 
truth.  That  is  for  the  jury  to  decide.  ^ '  In  order, ' ' 
says  the  Supreme  Judicial  Court  of  Massachusetts 
(Dickenson  v.  Fitchburg,  13  Gray,  546),  '^to  obtain 
the  opinion  of  a  witness  on  matters  not  depending 
on  general  knowledge,  but  on  facts  not  testified 
of  by  himself,  one  of  two  modes  is  pursued :  either 
the  witness  is  present  and  hears  all  the  testimony, 
or  the  testimony  is  summed  up  in  the  question  put 
to  him ;  and  in  either  case  the  question  is  put  to  him 
hypothetically,  whether,  if  certain  facts  testified  of 
are  true,  he  can  form  an  opinion,  and  what  that 
opinion  is. " 

Now  a  hypothetical  question  is  framed  on  the 
existence  of  facts  which  are  assumed  to  be  then 
proven,  or  there  is  a  reasonable  expectancy  that 
they  will  be  in  evidence  at  a  later  time.    It  must 


14  The  Doctor  in  Court 

necessarily  contain  the  facts  on  which  an  opinion 
is  wanted.  It  is  for  the  jury  to  decide  whether 
these  facts  are  the  trnth. 

The  following  is  a  good  example  of  a  hypo- 
thetical question  which  was  put  to  a  physician  of 
standing  and  experience,  for  his  opinion  as  to  the 
cause  of  a  sickness,  the  outcome  of  which  was  the 
death  of  a  little  girl:  '^Suppose  a  girl  between 
seven  and  eight  years  of  age,  who  had  always  been 
in  good  health,  on  the  9th  day  of  January,  1887, 
to  have  been  run  over  by  a  runaway  horse,  with 
sleigh  attached,  to  have  been  knocked  insensible  to 
the  ground,  the  horse  and  sleigh  passing  over  her, 
inflicting  three  cuts,  one  upon  the  top,  one  upon 
the  side,  and  one  upon  the  back  of  her  head,  from 
the  hoofs  of  the  horse  or  otherwise ;  that  she  there- 
after was  attacked  with  vomiting,  and  was  confined 
to  the  house  for  two  months,  suffering  gTeat  pain 
in  the  back  and  front  of  the  head ;  that  at  intervals 
thereafter  increasing  in  frequency  and  intensity 
till  the  date  of  her  death,  on  May  18,  1892,  she 
was  attacked  with  violent  pains  in  the  head  accom- 
panied with  vomiting ;  that  in  the  last  few  months 
of  her  life  her  sight  gTadually  failed,  and  she  be- 
came totally  blind ;  that  her  legs  became  unsteady, 
and  her  control  over  them  uncertain ;  that  she  suf- 
fered almost  continually  great  pain  in  the  front 
and  back  of  her  head;  that  after  her  death,  on 
examination,  it  was  found  that  she  had  one  or  more 
tumors  of  the  cerebellum,  or  at  the  base  of  the  brain 
— ^what,  in  your  opinion,  was  the  exciting  cause  of 


Professional  Evidence  15 

the  illness  from  wMch  she  suffered  from  Jannary 
9, 1887,  the  date  of  the  accident,  till  the  date  of  her 
death.  May  18,  1892  r'  (Hardiman  v.  Brown,  162 
Mass.,  585.) 

Leading  questions  cannot,  as  a  general  rule,, 
be  asked  on  the  direct  examination,  but  are  per- 
missible on  the  cross-examination.  A  leading 
question  is  one  that  suggests  the  answer.  On  the 
examination-in-chief  the  question  would  be  worded, 
** Where  were  you  at  9  o'clock  on  the  night  of  Feb- 
ruary 16th  1 ' '  Answer,  ^  *  I  was  at  the  theatre. ' '  In 
cross-examining  this  witness  the  question  could 
be  put,  ^'Were  you  not  at  the  theatre  on  the  night 
of  February  16th! '^ 

The  witness  should  watch  on  the  cross-examina- 
tion for  questions  so  involved  as  to  contain  really 
two  questions,  one  of  which  can  be  answered  ^  ^  yes '  * 
and  the  other  ^^no,''  whereas  if  the  physician 
answered  the  whole  with  a  ^  ^  yes ' '  or  ^  ^no, ' '  it  would 
trap  him.  The  witness  should  not  hesitate  to  say 
that  the  question  has  two  answers. 

Again,  many  times  questions  are  asked  which 
assume  something  to  be  true  that  has  no  evidence 
to  support  it,  as  where  A  is  indicted  for  shooting 
B,  which  he  denies,  and  is  asked,  ^ '  Did  B  say  any- 
thing to  you  before  you  shot  him  1  ^  ^  The  doctor  is 
likely  to  get  a  question  of  this  description.  It  is, 
of  course,  improper.  They  are  put  to  the  witness 
on  the  chance  of  getting  them  into  the  record  un- 
challenged. 

The  medical  witness  need  not  answer  a  question 


16  The  Doctoe  in  Couet 

which  tends  to  incriminate  him.  Poore  (A  Treatise 
on  Medical  Jurisprudence)  says  that  '4n  the  old 
days  of  duelling  any  doctor  who  went  out  as  a 
surgeon  to  a  duel  became  an  accessory  to  the  fact 
if  the  duel  resulted  in  death.  Technically  he  be- 
came accessory  to  a  murder.  Therefore,  in  such  a 
case  if  the  doctor  was  asked  whether  he  went, 
knowing  that  a  duel  was  to  be  fought,  he  was  not 
bound  to  answer,  because  the  answer  to  it  might 
incriminate  him.'' 

The  use  of  notes  by  a  witness  in  court  is  gen- 
erally allowed  for  the  purpose  of  refreshing  the 
memory  of  the  witness.  They  must  be  of  such  a 
nature  that  the  witness  knows  they  were  correct 
when  made.  The  witness  must  have  made  them 
himself  at  the  time  of  the  occurrence  of  the  facts, 
or  so  soon  afterward  that  it  is  likely  they  were  fresh 
in  his  memory  (Stephens'  Digest  of  the  Law  of 
Evidence,  339).  Such  writings  do  not  become  evi- 
dence. Yet  testimony  given  from  complete  notes 
is  of  great  worth. 

The  importance  to  the  physician  of  keeping  full 
and  accurate  records  of  cases  in  his  charge  cannot 
be  overemphasized.  The  physician  should  keep 
copies  of  the  death  certificates  he  gives,  and  the 
records  of  the  progress  of  diseases  in  cases  under 
his  care  and  also  hospital  records,  especially  where 
casualties  are  concerned.  General  practitioners 
are,  as  a  rule,  too  careless  in  such  matters. 

It  may  be  many  years  before  a  general  prac- 
titioner is  suddenly  summoned  as  a  witness  in  a 


Pkofessional  Evidence  17 

case,  and  he  then  finds  himself  at  a  loss  to  account 
for  certain  things  and  cannot  answer  questions 
properly.  Owing  to  the  multiplicity  of  personal  in- 
jury suits  with  which  our  courts  are  congested, 
the  physician  is  frequently  asked  to  give  medical 
evidence  concerning  injuries  sustained  by  his  pa- 
tient in  an  accident  which,  perhaps,  happened  years 
before.  If  he  is  without  any  record  he  will  find 
himself  in  an  embarrassing  situation.  In  almost 
every  personal  injury  case  the  plaintiff  has  under- 
gone a  physical  examination  by  a  physician  or  sur- 
geon hired  by  the  defendant.  If  called  to  make 
such  an  examination,  a  record  thereof  should  be 
made  for  the  benefit  of  the  defendant.  The  follow- 
ing outline  for  making  these  reports  is  suggested : 

Name  of  Case. 

Date. 

Time. 

Place  of  Accident. 

Date  of  Examination. 

Medical  Attendance,  stating  fully  names  of  phy- 
sicians with  addresses,  also  hospital,  if  any,  at 
which  injured  was  treated. 

Name. 

Age. 

Occupation. 

Business  and  Home  Address  of  Injured. 

Married  or  Single,  etc. 

Diagnosis. 

History. 


18  The  Doctok  in  Court 

Present  Condition  of  Injured. 

Nature  of  the  Accident  as  told  by  Injured. 

Prognosis. 

Eemarks. 

The  ^  ^  remarks ' '  of  the  physician  should  be  writ- 
ten on  a  separate  sheet  of  paper;  for  if  the  report 
is  to  be  used  by  the  doctor  to  refresh  his  memory 
in  court,  it  is  likely  to  be  scrutinized  by  the  oppos- 
ing counsel,  and  it  is  well  not  to  have  these  confi- 
dential comments  a  part  of  the  report. 

While  the  rules  governing  the  giving  of  expert 
medical  opinions  in  court  are  purely  questions  of 
evidence  with  which  the  legal  profession  is  more 
concerned,  still  they  have  been  hinted  at  here,  and 
it  does  not  seem  amiss  to  give  the  underlying  rea- 
sons for  permitting  medical  witnesses  to  give  opin- 
ions. As  a  general  rule  witnesses  are  not  permitted 
to  voice  their  opinions  in  court.  They  are  limited 
to  giving  in  evidence  the  bare  facts  of  which  they 
have  knowledge.  It  is  the  special  function  of  the 
jury  after  considering  the  facts  thus  presented  to 
voice  its  opinion  thereon.  In  other  words,  a  ver- 
dict is  the  conclusion  or  opinion  of  the  jury  on 
the  facts. 

Notwithstanding  this,  there  are,  as  we  have  seen, 
certain  cases  where  by  necessity  one  having  special 
skill  and  knowledge,  is  called  to  give  an  opinion  by 
way  of  explanation  of  the  matter  in  issue  to  the 
jury.  It  is  under  this  exception  that  the  expert 
medical  opinion  comes.    Obviously  a  physician  and 


Pkofessional  Evidence  19 

surgeon  has  a  knowledge  and  training  not  common 
to  men  in  general.  Consequently  when  a  question 
involving  medicine  or  surgery  arises,  the  medical 
expert  is  called  on  account  of  his  superior  knowl- 
edge. Because  the  facts  speak  in  a  strange  tongue 
to  the  ordinary  man,  the  physician  is  called  to 
translate  and  explain  their  correct  significance. 
The  opinions  so  given  are  not  conclusive,  but  are 
looked  upon  as  any  other  testimony.  Inasmuch  as 
they  are  based  on  assumptions  of  fact  the  opinion 
is  worthless  if  the  jury  do  not  find  the  evidence  or 
facts  upon  which  they  are  laid  to  be  true:  if  the 
foundation  is  unstable  the  superstructure  falls. 

The  giving  of  expert  opinions  in  court  did  not 
become  well  established  until  the  eighteenth  cen- 
tury. The  adoption  of  the  custom  has  been  grad- 
ual ;  its  history  is  that  of  the  correlation  of  law  and 
medicine.  As  progress  was  made  in  the  sciences 
and  arts  the  professional  witness  became  of  ever- 
increasing  importance,  until  to-day  he  is  indispen- 
sable. 

In  1532  the  diet  of  Eatisbon,  at  the  instigation 
of  Emperor  Charles  V,  adopted  the  penal  code  of 
Germany,  in  which  provision  was  made  for  the  call- 
ing of  physicians  as  witnesses  in  case  of  injury, 
poisoning,  violent  death,  etc. 

In  England  it  was  first  customary  to  select 
jurors  who  were  specially  fitted  to  judge  the  facts 
of  a  particular  case  (Historical  and  Practical 
Considerations  Regarding  Expert  Testimony,  by 
Learned  Hand,  vol.  15,  Harv.  Law  Rev.,  40) .   Prob- 


20  The  Doctoe  in  Coukt 

ably  the  earliest  trial  where  a  medical  witness  tes- 
tified as  to  his  conclusions  was  that  of  Alsop  v. 
Bowtrell  (Cro.  Jac,  54)  in  1620,  when  physicians 
upon  the  issue  of  legitimacy  of  a  child  said  it  was 
possible  for  a  woman  to  have  a  child  forty  weeks 
and  nine  days  after  the  death  of  her  husband,  be- 
cause the  time  might  be  delayed  on  account  of  lack 
of  strength  or  bad  usage.  The  Witches  case  (6 
Howell,  State  Trials,  697)  tried  in  1665,  is  another 
early  case  in  which  an  expert  opinion  was  per- 
mitted. In  that  trial  a  physician  gave  his  opinion 
of  the  accused  persons.  He  declared  them  to  be 
witches. 

Because  of  the  very  restricted  sense  in  which 
medical  books  can  be  used  in  our  courts,  the  de- 
liberately expressed  opinions  of  experts  upon 
scientific  matters  is  of  great  assistance.  A  product 
of  our  civilization,  the  employment  of  the  expert 
daily  becomes  more  frequent  and  of  greater  con- 
sequence. The  desire,  therefore,  to  remedy  the 
faults  of  the  method  which  now  obtains  is  actively 
manifesting  itself.  Yet  the  task  of  formulating  a 
satisfactory  plan  still  vexes  the  members  of  both 
professions.  Many  reforms  have  been  suggested. 
That  one  which  would  have  the  expert  appointed  by 
the  court  gives  most  promise  of  deliverance  from 
the  present  situation.  For  the  evils  of  the  system 
seem  chargeable  to  the  fact  that  the  expert  is  now 
retained  by  the  contending  parties  in  a  case.  His 
position  is  that  of  an  active,  interested  participant. 
The  suspicion  that  he  is  a  mere  ^^intellectual  prosti- 


Pkofessiokal  Evidence  21 

tute"  is  immediately  aroused  in  the  minds  of  the 
jury.  His  appointment  by  the  court  would  remove 
him  from  this  embarrassing  situation  and  place 
him  in  an  unprejudiced  and  neutral  position.  The 
viciousness  of  the  present  method  has  brought  forth 
just  criticism  and  reproach.  It  is  a  subject  which 
deserves  serious  reformatory  consideration.  The 
remedy  lies  with  the  members  of  both  professions 
(Expert  Testimony, — Prevalent  Complaints  and 
Proposed  Eemedies  by  Judge  William  L.  Foster, 
11  Harv.  Law  Kev.,  169;  Expert  Testimony,  by 
Lee  Max  Friedman,  Yale  Law  Journal.  February, 
1910). 

When  the  physician  and  surgeon  is  called  upon 
to  give  evidence  in  court  he  should  bear  in  mind 
the  advice  of  Dr.  Taylor.  ^'It  is  essential, '^  said 
Taylor,  '^  first,  that  he  should  be  prepared  on  all 
parts  of  the  subject  on  which  he  is  about  to  give 
evidence;  and,  secondly,  his  demeanor  should  be 
that  of  an  educated  gentleman  and  suited  to  the 
serious  occasion  on  which  he  appears. ' ' 


CHAPTER   ir 

THE     CONTEACT    OF    THE    PROFESSIOIT 

At  tliis  point  it  seems  necessary  to  introduce 
a  brief  preliminary  statement  of  the  origin  and  his- 
tory of  the  legal  system  of  onr  country  in  order 
that  the  law  as  it  specially  affects  physicians  and 
surgeons  in  their  relations  to  their  patients  may 
be  more  readily  understood.  This  system  in  its 
jDresent  complex  development  is  said  to  be  like  a 
mighty  cathedral^  of  slow  construction  and  com- 
posite architecture,  the  materials  for  which  have 
been  brought  from  various  sources,  and  the  growth 
of  which  has  been  supervised  by  a  coalition  of  legal 
architects. 

Since  the  evolution  of  human  from  animal 
society  man  has  had  his  conduct  regulated  by  law. 
Through  the  centuries  of  savagery  and  barbarism, 
customary  law  determined  the  relations  of  man  to 
his  fellows,  and  after  the  dawn  of  civilization, 
through  conquest  and  migration  and  the  consequent 
intermingling  and  blending  of  peoples  and  socie- 
ties, positive  law  arose  and  developed  as  a  natural 
attendant  of  advancing  civilization  and  a  necessary 
factor  in  an  increasingly  complex  society. 

In  England,  which  at  the  close  of  the  thirteenth 

22 


Contract  op  the  Pkofession  23 

century  had  only  two  things  on  her  statute-book  be- 
sides the  Magna  Charta,  the  common  law  has  been 
the  foundation  of  all  modern  law,  written  or  other- 
wise. It  is  composed  of  customs  and  maxims  which 
have  been  acted  upon  since  no  man  can  say  what 
time.  In  the  words  of  Cooley,  ^^The  common  law 
of  England  consisted  of  those  maxims  of  freedom, 
order,  enterprise,  and  thrift  which  had  prevailed  in 
the  conduct  of  public  affairs,  the  management  of 
private  business,  the  regulation  of  the  domestic  in- 
stitutions, and  the  acquisition,  control,  and  transfer 
of  property  from  time  immemorial.  It  was  the  out- 
growth of  the  habits  of  thought  and  action  of  the 
people,  and  was  modified  gradually  and  insensibly 
from  time  to  time  as  those  habits  became  modified, 
and  as  civilization  advanced,  and  new  inventions  in- 
troduced new  wants  and  conveniences  and  new 
methods  of  business'^  ( Cooley 's  Constitutional 
Limitations,  32).  It  must  not  be  supposed  then 
that  law  is  a  set  of  fixed  and  unalterable  rules.  It 
is  constantly  changing  with  the  welter  and  cross 
currents  of  social  and  economic  conditions  to  meet 
the  changing  needs  of  a  changing  society. 

Now  it  must  be  kept  in  mind  that  for  more 
than  half  of  its  eventful  life  this  country  existed 
as  a  British  colonial  possession.  Our  forefathers 
as  subjects  of  England,  lived  in  her  territory,  and 
were  governed  by  English  law.  When  as  emi- 
grants they  crossed  to  the  New  World,  they  brought 
with  them  such  parts  of  the  common  and  statutory 
law  of  the  mother  country  as  were  best  suited  to 


24  The  Doctor  ix  Court 

tlieir  altered  circumstances  on  this  side  of  the  At- 
lantic. After  hostilities  between  the  colonies  and 
the  crown  ended  in  our  independence,  it  was  only 
natural  that  our  ancestors  should  keep  the  laws  to 
which  they  had  been  accustomed  in  so  far  as  they 
did  not  abrogate  our  constitutions  and  charters. 
It  is  not  strange  then  that  we  find  the  common 
law  an  integral  part  of  the  system  of  law  under 
which  we  live.  In  this  country,  as  in  England,  it 
is  the  foundation  of  all  our  modern  statutes,  and, 
though  unwritten,  comprises  by  far  the  greater 
part  of  our  law.  Therefore  it  follows  that  many 
of  the  rules  relating  to  the  duties  and  legal  obliga- 
tions of  physicians  and  surgeons  are  to  be  found 
in  the  common  law. 

Sir  William  Blackstone  defines  a  contract  as 
*^an  agreement,  upon  a  sufficient  consideration,  to 
do  or  not  to  do  a  particular  thing''  (2  Bl.  Conun., 
442). 

Contracts  are  of  different  kinds.  They  are 
usually  divided  with  reference  to  their  form  into 
contracts  of  record,  specialties,  and  simple  or  parol 
contracts.  Contracts  of  record  are  those  of  which 
the  record  of  a  court  is  the  evidence,  as  a  judgment. 
Specialties  are  sealed  instruments,  such  as  deeds 
and  bonds.  The  last  division  into  simple  or  parol 
contracts  includes  all  other  contracts  which  may 
be  in  writing  or  oral. 

Simple  contracts  are  also  distinguished  as  ex- 
press or  implied.  This  classification  is  important 
in  the  contracts  of  the  physician  and  surgeon  and 


CONTKACT   OF    THE   PeOFESSION  25 

his  patient.  An  express  contract  is  a  ^^  contract 
made  in  distinct  and  explicit  language,  or  by  writ- 
ing; as  distinguished  from  an  implied  contract''  (2 
Kent's  Comm.,  450),  which  is  ^'one  not  created  or 
evidenced  by  the  explicit  agreement  of  the  parties, 
but  inferred  by  law  as  a  matter  of  reason  and  jus- 
tice, from  their  acts  or  conduct"  (2  Bl.  Comm., 
443). 

For  illustration :  X  engages  Y  to  perform  some 
service  for  him.  The  law  will  here  imply  an  agree- 
ment or  understanding  that  X  will  pay  Y  a  reason- 
able amount  for  the  work  he  does. 

Contracts  are  further  separated  into  those 
which  are  executed  and  those  which  are  executory. 
An  executed  contract  is  one  that  has  been  per- 
formed fully  and  nothing  remains  to  be  done  by  the 
parties  thereto.  A  contract  is  said  to  be  executory 
when  there  is  yet  something  to  be  done. 

There  are  certain  elements  which  are  necessary 
in  the  formation  of  every  contract  enforceable  in 
law.  It  is  essential  that  the  parties  should  be  ca- 
pable of  contracting.  It  is  well  known  that  certain 
persons  are  not  competent  to  make  contracts. 
Thus  a  minor  or  infant  (one  who  is  under  twenty- 
one  years  of  age,  though  in  some  instances  a  fe- 
male attains  her  majority  at  eighteen  years)  can- 
not legally  contract.  The  minor's  contract,  except 
for  ^^necessaries,"  is  held  to  be  voidable,  not  void, 
which  means  that  upon  becoming  of  age  or  a  rea- 
sonable time  thereafter,  he  can  elect  to  disaffirm 
the  contract  and  not  bind  himself  to  its  terms,  or  he 


26  The  Doctoe  in  Court 

can  ratify  it  and  become  bound.  With  regard  to 
^'necessaries/'  in  the  words  of  Lord  Coke  (Co. 
Lit.,  172a)  '4t  is  agreed  by  all  the  books  that  an  in- 
fant may  bind  himself  to  pay  for  his  necessary 
meat,  drink,  apparel,  physic  and  other  neces- 
saries.'' (Insane  persons,  drunkards,  and  bank- 
rupts are  in  certain  cases  considered  incapable  of 
contracting.) 

Another  constituent  element  of  a  contract  is  that 
the  minds  of  the  parties  must  meet.  There  must 
be  mutual  consent  to  its  stipulations ;  there  must  be 
no  mistake  or  fraud. 

Furthermore,  there  must  be  a  valid  considera- 
tion. The  consideration  is  the  '  ^  inducement  to  the 
contract"  (Black's  Law  Dictionary). 

It  is  also  necessary  that  the  object  of  the  con- 
tract be  one  that  is  permitted  by  law;  that  is  to 
say,  a  contract  to  do  an  illegal  act  is  void.  For  ex- 
ample, the  owner  of  a  '^ medical  institute"  could 
not  contract  to  cure  diseases  and  give  medical  ad- 
vice and  treatment  when  he  did  not  have  a  license 
to  practise  medicine  (Deaton  v.  Lawson,  40  Wash., 
486;  82  Pac,  879).  He  could  not  perform  his  part 
of  the  contract  without  violating  the  law,  hence 
there  was  no  valid  consideration,  and  the  contract 
was  void. 

The  language  used  in  making  contracts, 
whether  they  be  oral  or  written,  and  the  effect 
thereof,  are  matters  of  fact  for  the  jury  to  deter- 
mine. Nevertheless,  the  law  will  often  infer  or  im- 
ply a  contract  from  certain  facts  which  are  undis- 


CONTKACT    OF    THE    PeOFESSION  27 

puted.  It  considers  certain  elements  a  part  of  some 
classes  of  contracts,  and  charges  the  parties  with 
certain  duties  in  connection  therewith.  This  is  the 
case  of  contracts  of  a  semi-pnblic  nature,  as  those 
of  lawyers  and  the  contracts  of  the  medical  pro- 
fession. So  it  is  by  implication  of  law  that  the 
physician  and  surgeon  holding  himself  out  to  the 
world  as  such,  represents  that  he  possesses  the  wis- 
dom and  skill  necessary  to  qualify  him  to  practise. 
The  law  charges  him  absolutely  with  the  duty  of 
possessing  this  knowledge  (Force  v.  Gregory,  63 
Conn.,  167;  38  Am.  St.  Eep.,  371;  Pike  v.  Honsin- 
ger,  155  N.  Y.,  201 ;  Kendall  v.  Brown,  74  111.,  232 ; 
Potter  V.  Warner,  91  Pa.  St.,  362 ;  Sears  v.  Pren- 
tice, 8  East,  348).  It  is  a  right  of  his  patient  to 
assume  this  to  be  the  fact,  and  an  attempt  to  per- 
form an  operation,  where  the  physician  lacks  the 
learning  and  experience  to  use  ordinary  skill,  will 
not  be  excused  on  the  plea  of  ignorance. 

This  degree  of  professional  learning  and  skill 
which  the  physician  is  required  to  bring  to  the  aid 
and  relief  of  his  patients,  has  been  considered  by 
the  courts  in  a  vast  number  of  cases.  They  have 
almost  universally  held  that  when  a  physician  and 
surgeon  undertakes  to  attend  a  case,  he  impliedly 
contracts  that  he  will  use  that  degree  of  learning 
and  skill  for  his  employer  which  is  ordinarily 
possessed  by  other  members  of  his  profession  in 
localities  not  dissimilar  from  that  in  which  he  is 
practising  ( Whitesell  v.  Hill,  101  la.,  629 ;  37  L. 
E.  A.,  830;  Small  v.  Howard,  128  Mass.,  131;  35 


28  The  Doctoe  in  Court 

Am.  St.  Rep.,  363;  Force  v.  Gregory,  63  Conn., 
167;  Tompkins  v.  Pacific  Mut.  Life  Ins.  Co.,  53  W. 
Va.,  479 ;  Akridge  v.  Noble,  114  Ga.,  949 ;  Grainger 
V.  Still,  187  Mo.,  197;  Utley  v.  Bums,  70  111.,  167; 
Leigliton  v.  Sargent,  31  N.  H.,  119 ;  McCracken  v. 
Smathers,  122  N.  C,  799;  Bonnet  v.  Foote,  47 
Colo.,  282 ;  Van  Skike  v.  Potter,  53  Nek,  28 ;  Hales 
V.  Raines,  146  Mo.  App.,  232 ;  Barnes  v.  Means,  82 
111.,  379 ;  Pike  v.  Honsinger,  155  N.  Y.,  201 ;  Jones 
V.  Angell,  95  Ind.,  376 ;  McMurdock  v.  Kimberlin, 
23  Mo.  App.,  523;  Gillette  v.  Tucker,  67  Ohio  St., 
106;  Wells  V.  Ferry-Baker  Co.,  57  Wash.,  658;  107 
Pac.  Rep.,  869;  Wood  v.  Clapp,  4  Sneed  (Tenn.), 
65 ;  Dunbauld  v.  Thompson,  109  la.,  199.  See  also 
exhaustive  note  in  37  Lawj^ers '  Reports  Annotated, 
325). 

The  reason  for  taking  into  consideration  the 
place  where  the  medical  man  carries  on  his  practice 
is  apparent  immediately  we  think  of  the  educational 
advantages  the  city  doctor  has  over  one  who  prac- 
tises in  the  less  thickly  populated  sections  of  the 
country.  The  former  has  institutional  privileges 
of  hospitals  and  libraries.  He  can  attend  clinics, 
lectures,  and  the  meetings  of  medical  societies,  thus 
becoming  quickly  conversant  with  the  most  recent 
and  up-to-date  methods  of  diagnosis  and  treat- 
ment. It  would  obviously  work  an  injustice  to 
hold  otherwise.  Of  course,  a  country  doctor  may 
be  equipped  with  an  excellent  education  and  have 
a  wide  knowledge  of  the  literature  of  his  profes- 
sion, but  proficiency  in  performing  difficult  and 


Contract  of  the  Profession  29 

delicate  operations  comes  only  through  experience. 
His  opportunities  for  acquiring  skill  are  limited. 
Here  is  an  illustration:  In  the  case  of  Small 
V.  Howard  (128  Mass.,  131),  a  physician  and  sur- 
geon was  sued  for  negligently  treating  and  dress- 
ing an  injury  to  the  wrist  of  the  plaintiff.  It 
appeared  that  the  defendant  was  a  practitioner  in 
a  small  town.  The  wound  was  a  very  severe  one, 
having  heen  caused  hy  glass,  and  the  inside  of  the 
wrist  was  cut  to  the  hone,  severing  all  the  tendons 
and  arteries.  The  court  charged  the  jury  as  to 
the  degree  of  skill  and  learning  it  was  incumhent 
on  the  defendant  to  possess,  that  ^Hhe  defendant, 
undertaking  to  practise  as  a  physician  and  sur- 
geon in  a  town  of  comparatively  small  population, 
was  hound  to  possess  that  skill  only  which  phy- 
sicians and  surgeons  of  ordinary  ahility  and  skill, 
practising  in  similar  localities,  with  opportunities 
for  no  larger  experience,  ordinarily  possess;  he 
was  not  hound  to  possess  that  high  degree  of  art 
and  skill  possessed  hy  eminent  surgeons  practising 
in  large  cities  and  making  a  specialty  of  the  prac- 
tice of  surgery. ' '  It  was  held  by  the  higher  court 
that  there  was  no  error  in  this  charge.  The  court 
in  pronouncing  it  correct  said:  ^^It  is  a  matter  of 
common  knowledge  that  a  physician  in  a  small 
country  village  does  not  usually  make  a  specialty 
of  surgery,  and,  however  well  informed  he  may  be 
in  the  theory  of  all  parts  of  his  profession,  he 
would,  generally  speaking,  be  but  seldom  called 
upon  as  a  surgeon  to  perform  difficult  operations. ' ' 


30  The  Doctoe  ik  Court 

It  has  been  held  that  the  skill  and  learning 
essential  for  the  medical  man  to  possess  and  use 
is  not  to  be  tested  by  the  standard  of  the  par- 
ticular neighborhood  in  which  he  carries  on  his 
practice.  Said  the  court  in  Gramm  v.  Boener  (56 
Ind.,  497),  impugning  the  contrary  doctrine: 
i  i  There  might  be  but  a  few  practising  in  the  given 
locality,  all  of  whom  might  be  quacks,  ignorant  pre- 
tenders to  knowledge  not  possessed  by  them,  and  it 
would  not  do  to  say,  that,  because  one  possessed 
and  exercised  as  much  skill  as  the  others,  he  could 
not  be  chargeable  with  the  want  of  reasonable 
skill.'' 

He  is  not  bound  to  exercise  that  skill  which  is 
necessary  to  put  the  patient  in  as  good  condition 
as  he  was  before  the  injury  or  illness.  Thus  it 
was  held  in  McCandless  v.  McWha  (22  Pa.  St.,  261) 
to  be  error  to  instruct  the  jury  that  '^the  defendant 
was  bound  to  bring  to  his  aid  the  skill  necessary 
for  a  surgeon  to  set  the  leg  so  as  to  make  it  straight 
and  of  equal  length  with  the  other  when  healed, 
and  if  he  did  not,  he  was  accountable  in  damages 
just  as  a  stonemason  or  bricklayer  would  be  in 
building  a  wall  of  poor  materials,  and  the  wall  fell 
down;  or  if  they  built  a  chimney  and  it  would 
smoke  by  reason  of  a  want  of  skill  in  its  construc- 
tion. ' ' 

In  disapproving  of  this  statement  of  the  law, 
the  upper  court  said:  ^'The  fracture  may  be  so 
complicated  that  no  skill  vouchsafed  to  man  can  re- 
store original  straightness  and  length;  or  the  pa- 


CONTKACT    OF    THE    pKOrESSIOISr  31 

tient  may,  by  wilful  disregard  of  the  surgeon's  di- 
rections, impair  the  effect  of  the  best  conceived 
measures.  He  deals  not  with  insensate  matter  like 
the  stonemason  or  bricklayer,  who  can  choose  their 
materials  and  adjust  them  according  to  mathe- 
matical lines ;  but  he  has  a  suffering  human  being 
to  treat,  a  nervous  system  to  tranquillize,  and  a 
will  to  regulate  and  control."  So  also  the  courts 
have  said  the  physician  and  surgeon  does  not  have 
to  possess  the  highest  degree  of  skill  (Small  v. 
Howard,  128  Mass.,  131;  Howard  v.  Grover,  28 
Me.,  97;  Lamphier  v.  Phipos,  8  Car.  &  P.,  475) ; 
nor  need  he  be  thoroughly  educated  (Peck  v.  Hut- 
chinson, 88  la.,  320). 

It  must  not  be  thought  when  a  question  of  skill 
and  learning  is  under  consideration  that  the  law 
has  no  regard  for  the  current  state  of  progress  of 
medicine  and  surgery.  For  it  takes  cognizance  of 
such  advancement,  and  methods  fallen  into  desue- 
tude will  not  be  tolerated,  even  though  the  phy- 
sician and  surgeon  carries  on  his  practice  in  a 
thinly  settled  neighborhood  (Almond  v.  Nugent,  34 
la.,  300;  McCandless  v.  McWha,  22  Pa.  St.,  261; 
Haire  v.  Keese,  7  Phila.  (Pa.),  138;  Gates  v. 
Fleischer,  67  Mo.,  504;  Nelson  v.  Harringi:on,  72 
Wis.,  591;  12  L.  R.  A.,  719;  Small  v.  Howard,  128 
Mass.,  131;  Tetft  v.  Wilcox,  6  Kan.,  33;  Hitchcock 
v.  Burgett,  38  Mich.,  501 ;  Bigney  v.  Fisher,  26  R. 
I.,  402;  Gillette  v.  Tucker,  67  Oliio  State,  106). 

The  law  imposes  upon  the  physician  and  sur- 
geon the  duty  of  using  reasonable  care,  zeal,  and 


32  The  Doctor  in  Court 

diligence  in  the  treatment  of  every  case  he  engages 
to  attend.  The  criterion  of  what  constitutes  due 
care  on  the  doctor's  part  is  the  same  set  for  cases 
involving  questions  of  skill  and  learning;  that  is, 
the  reasonable  degree  exercised  by  the  average 
members  of  the  profession  similarly  located  (see 
cases  cited  supra).  It  was  said  in  Pike  v.  Ilons- 
inger  (155  N.  Y.,  201) :  ^'Upon  consenting  to  treat 
a  patient,  it  becomes  his  [the  physician's  and  sur- 
geon's] duty  to  use  reasonable  care  and  diligence 
in  the  exercise  of  his  skill  and  the  application  of 
Ms  learning  to  accomplish  the  purpose  for  which 
he  was  employed."  This  rule  has  been  very  gen- 
erally followed  by  the  various  States  (McCandless 
V.  McWha,  22  Pa.  St.,  261 ;  McNevins  v.  Lowe,  40 
111.,  210;  Patten  v.  Wiggin,  51  Me.,  594;  Carpenter 
V.  Blake,  10  Hun  (N.  Y.),  358;  Craig  v.  Chambers, 
17  Ohio  St.,  254). 

In  determining  a  question  of  skill  and  care  it 
is  immaterial  whether  the  physician  was  compen- 
sated for  his  care  of  and  attention  to  the  case.  In 
other  words,  liability  for  negligence  or  malpractice 
may  attach  without  a  contract  for  compensation, 
express  or  implied  (Peck  v.  Hutchinson,  88  la., 
320;  McNevins  v.  Lowe,  40  111.,  209;  DuBois  v. 
Decker,  130  N.  Y.,  325;  Gladwell  v.  Steggall,  5 
Bing.  (N.  C),  773). 

^^  Whether  the  patient  be  a  pauper  or  a  mil- 
lionaire, whether  he  be  treated  gratuitously  or  for 
reward,  the  physician  owes  him  precisely  the  same 
measure  of  duty  and  the  same  degree  of  skill  and 


CONTEACT    OF    THE    PkOFESSION  33 

care'^  (Becker  v.  Janinski,  27  Abb.  N.  C,  45). 
Neither  is  it  material  that  the  medical  attendance  is 
to  be  paid  for  by  some  third  party  (Du  Bois  v. 
Decker,  130  N.  Y.,  325).  It  was  held  in  Higgins  v. 
McCabe  (126  Mass.,  13;  30  Am.  Eep.,  642),  where 
one  who  professed  to  be  a  midwife  volunteered  gra- 
tuitously to  treat  a  child  for  an  eye  trouble  and 
the  child  subsequently  became  blind,  that  such  a 
person  not  being  specially  qualified  could  only  be 
required  to  use  that  skill  which  persons  similarly 
qualified  would  exercise  under  like  conditions. 
The  court  said:  **To  hold  otherwise  would  be  to 
charge  responsibility  in  large  damages  upon  all 
who  make  mistakes  in  the  performance  of  kindly 
offices  for  the  sick."  It  is  palpable  from  this  case 
that  persons  who  make  no  pretentions  to  possess- 
ing the  skill  and  learning  of  a  regular  practitioner, 
but  put  themselves  in  the  position  of  such  a  one, 
will  not  be  held  to  so  strict  a  degree  of  account- 
ability as  one  who  holds  himself  out  as  a  phy- 
sician and  deceives  the  patient  (Musser  v.  Chase, 
29  Ohio  St.,  577;  see  also  Nelson  v.  Harrington, 
72  Wis.,  591). 

From  a  moral  standpoint  the  doctor  must,  of 
course,  use  the  very  highest  degree  of  care  and 
skill,  but  in  contemplation  of  law  it  is  only  neces- 
sary for  him  to  exercise  that  which  is  ordinary  and 
reasonable  (Leighton  v.  Sargent,  27  N.  H.,  460). 
It  is  apparent  that  some  cases  require  greater  at- 
tention than  others;  there  is  a  great  difference 
between  the  skill  and  care  which  is  used  in  a  case 


34  The  Doctor  in-  Court 

of  typhoid  fever  and  one  of  simple  coryza.  By 
some  courts  the  view  is  held  that  the  measure  of 
care  and  skill  which  the  physician  must  exercise 
is  dependent  upon  the  nature  of  the  complaint 
which  gives  occasion  for  his  employment;  that  is 
to  say,  in  serious  cases  a  greater  degree  of  dili- 
gence and  skill  must  be  used  than  in  cases  of 
minor  imi^ortance.  But  the  tendency  of  the  courts 
is  contra  to  this.  It  is  to  the  effect  that  the  de- 
gree of  skill  and  care  required  is  not  to  be  meas- 
ured by  the  condition  of  the  patient  (Utley  v. 
Burns,  70  111.,  162 ;  Peck  v.  Martin,  17  Ind.,  il5 ; 
Eeynolds  v.  Graves,  3  Wis.,  371). 

The  degree  of  skill  and  diligence  which  the  phy- 
sician and  surgeon  is  bound  to  exercise  arises,  as 
we  have  seen,  from  the  undertaking  by  implica- 
tion of  law.  It  is  implied  in  those  cases  where 
there  is  not  an  express  contract.  Obviously  one  who 
professes  to  be  a  specialist  or  possesses  unusual 
endowments  may  hold  himself  out  and  contract 
with  the  patient  as  one  possessed  with  extraordi- 
nary skill  and  learning  in  a  particular  branch 
of  medicine  or  surgery,  not  common  to  the  gen- 
eral practitioner  of  the  profession.  In  such  a  case, 
of  course,  he  is  held  to  a  higher  professional  stand- 
ard. He  must  use  that  care  and  skill  in  diagnosing 
and  treating  a  given  case  which  is  exercised  by 
other  specialists  in  his  particular  line  with  refer- 
ence to  the  state  of  scientific  knowledge  at  the  time 
of  his  treatment  (Pettigrew  v.  Lewis,  46  Kan.,  78; 
Baker  v.  Hancock,  29  Ind.  App.,  456;  Feeney  v. 


Contract  of  the  Pkofession  35 

Spaulding,  89  Me.,  Ill ;  35  AtL,  1027 ;  Williams  v. 
Le  Bar,  141  Pa.  St.,  149 ;  McMurdock  v.  Kimberlin, 
23  Mo.  App.,  523;  Whitesell  v.  Hill,  101  la.,  629). 

This  is  the  age  of  specialization,  and,  owing  to 
the  extended  range  of  scientific  investigation,  it 
becomes  impossible  for  the  average  practitioner  to 
attain  a  use  of  this  knowledge  and  the  develop- 
ment resulting  therefrom  in  the  course  of  his  prac- 
tice. An  oculist  is  one  of  the  many  examples  of 
this.  He  is  held  to  the  same  measure  of  skill  and 
care  as  others  practising  his  specialty  (Stern  v. 
Lanng,  106  La.,  738).  The  issue  in  such  cases  being 
whether  the  physician  professed  to  be  a  specialist 
and  held  himself  out  as  such,  it  is  a  question  of 
fact  for  the  plaintiff  to  prove  and  the  jury  to  de- 
cide (Baker  v.  Hancock,  29  Ind.  App.,  456;  McMur- 
dock V.  Kimberlin,  23  Mo.  App.,  523). 

In  addition  to  his  engagement  to  use  due  care 
and  skill  in  diagnosing  and  treating  a  case  the 
medical  practitioner  assumes  an  implied  obliga- 
tion to  use  his  best  judgment  in  matters  of  doubt 
as  to  the  best  course  to  take  (Patten  v.  Wiggin,  51 
Me.,  594 ;  Du  Bois  v.  Decker,  130  N.  Y.,  325 ;  Heath 
V.  Glisan,  3  Ore.,  64) » 

The  case  of  Mallen  v.  Bo^nton  (132  Mass.,  443) 
was  an  action  against  a  physician  for  improperly 
treating  a  broken  arm.  The  court  of  last  resort 
held  that  the  jury  was  properly  instructed  that, 
*^If  the  defendant  at  any  time  during  his  at- 
tendance upon  the  plaintiff,  either  at  the  time  of 
the  original  injury  or  afterward,  was  uncertain 


36  The  Doctor  in  Court 

and  in  doubt  as  to  the  extent  and  nature  of  the  in- 
jury he  was  attending  upon,  the  defendant  was 
required  to  use  his  best  judgment  as  to  the  best 
course  of  treatment,  and  also  whether  he  should 
consult  some  competent  surgeon,  if  such  could  be 
found  within  a  reasonable  distance.  If  the  defend- 
ant had  not  the  required  skill  and  experience 
to  treat  the  arm  or  felt  incompetent  to  care  for 
the  injury  he  should  have  temporarily  dressed  it, 
if  necessary,  and  recommended  the  plaintiff  to  a 
more  skilful  surgeon." 

The  physician  and  surgeon,  however,  does  not 
warrant  the  infallibility  of  his  judgment  where  he 
can  prove  that  he  used  reasonable  care  and  pos- 
sessed the  skill  of  the  average  members  of  the  pro- 
fession in  good  standing  in  similar  localities  (West 
V.  Martin,  31  Mo.,  375;  Jackson  v.  Bumham,  20 
Colo.,  532). 

Naturally  there  can  be  such  a  mistake  of  judg- 
ment as  on  its  face  to  be  repugnant  to  the  belief 
that  the  required  skill  and  diligence  were  used 
(West  V.  Martin,  31  Mo.,  375),  and  it  is  in  those 
cases  where  the  error  is  so  great  or  gross  as  to  im- 
ply a  want  of  ordinary  skill  and  care  that  the  phy- 
sician and  surgeon  is  made  responsible. 

For  example,  a  man  without  any  special  quali- 
fications or  learning  in  the  science  of  medicine  and 
surgery  might  attempt  a  serious  and  delicate  oper- 
ation with  disastrous  results.  It  might  be  only  the 
result  of  a  mistaken  judgment,  but,  nevertheless, 
he  would  be  liable,  for  he  did  not  have  the  skill  and 


CONTEACT   OF    THE   PeOFESSION  37 

learning  essential  to  qualify  Mm  to  undertake  such 
an  operation.  The  physician  is  bound  to  employ 
the  remedies  and  appliances  which  experience  and 
reason  dictate  as  being  best  in  aiding  the  patient 
to  a  speedy  recovery,  and  even  though  these  be 
of  the  simplest  kind  he  must  exercise  his  best  judg- 
ment together  with  reasonable  care  and  skill  in 
order  to  absolve  himself  from  liability  (McCandless 
V.  McWha,  22  Pa.  St.,  261).  An  improper  diagnosis 
would  not  render  him  liable  if  there  was  no  error 
in  the  treatment  following  such  diagnosis  (Tomer 
v.  Aiken,  126  la.,  114). 

There  is  no  implication  or  presumption  in  the 
contract  of  the  physician  that  he  will  cure  his  pa- 
tient. He  does  not  guarantee,  warrant,  or  insure 
the  success  of  his  treatment  (O'Hara  v.  Wells,  14 
Neb.,  403 ;  Ewing  v.  Goode,  78  Fed.  R.,  442 ;  Link  v. 
Sheldon,  136  N.  Y.,  1 ;  Grainger  v.  Still,  187  Mo., 
197;  Gillette  v.  Tucker,  67  Ohio  St.,106),  and,  even 
though  the  patient  derives  no  advantage  or  bene- 
fit from  his  therapeutic  measures,  there  is  no  pre- 
sumption that  he  did  not  exercise  the  proper 
amount  of  skill  and  learning.  In  other  words,  the 
fact  that  the  physician's  medical  treatment  or  sur- 
gical operation  was  a  failure  does  not  justify  draw- 
ing the  conclusion  that  he  was  not  careful  and  skil- 
ful (Tomer  v.  Aiken,  126  la.,  114 ;  Haire  v.  Reese,  7 
Phila.,  138). 

Judge  Thayer  (Haire  v.  Reese,  7  Phila.,  138) : 
*  ^  No  presumption  of  the  absence  of  proper  skill  and 
attention  arises  from  the  mere  fact  that  the  patient 


38  The  Doctoe  iisr  Court 

does  not  recover.  .  .  .  God  forbid  the  law 
should  apply  any  rule  so  rigorous  and  unjust  as 
that  to  the  relations  and  responsibilities  arising  out 
of  this  noble  and  humane  profession." 

Former  President  Taft  while  sitting  on  the 
bench  in  the  case  of  Ewing  v.  Goode  (78  Fed.,  442) 
said:  *^A  physician  is  not  a  warrantor  of  cures." 
If  **a  failure  to  cure  was  held  to  be  evidence, 
however  slight,  of  negligence  on  the  part  of  the 
physician  or  surgeon  causing  the  bad  result,  few 
would  be  courageous  enough  to  practise  the  heal- 
ing art,  for  they  would  have  to  assume  financial 
liability  for  nearly  all  the  411s  that  flesh  is  heir 
to.'  " 

An  important  principle  of  law  governing  the 
conduct  of  the  physician  and  surgeon  is  that  he 
must  follow  in  a  given  case  the  established  custom 
or  practice  of  the  profession  in  treating  that  par- 
ticular kind  of  case  (Patten  v.  Wiggin,  51  Me.,  594). 
The  law  deals  mercilessly  with  those  who  for  the 
purpose  of  experimentation  deviate  from  the  estab- 
lished mode  of  practice;  that  is  to  say,  the  phy- 
sician is  held  to  methods  which  have  been  uni- 
versally accepted  by  the  majority  of  the  pro- 
fession. As  was  said  in  the  well-considered  case  of 
Jackson  v.  Bumham  (20  Colo.,  532),  *^  There  must 
be  some  criterion  by  which  to  test  the  proper  mode 
of  treatment  in  a  given  case,  and  when  a  par- 
ticular mode  of  treatment  is  upheld  by  the  con- 
sensus of  opinion  among  the  members  of  the  pro- 
fession, it  should  be  followed  by  the  ordinary  prac- 


CONTEACT   OF    THE   PROFESSION  39 

titioner,  and  if  a  physician  sees  fit  to  experiment 
with  some  other  mode,  he  should  do  so  at  his 
peril.  In  other  words,  he  must  be  able,  in  case 
of  deleterious  results,  to  satisfy  the  jury  that  he 
had  reason  for  the  faith  that  was  in  him, 
and  justify  his  experiment  by  some  reasonable 
theory. ' ' 

The  physician  and  surgeon,  then,  acts  at  his 
peril  in  not  following  established  practice,  and,  if 
he  employs  some  other  method  than  that  which 
is  generally  followed,  with  an  injurious  result  to 
his  patient,  such  failure  of  his  experiment  will 
not  be  excused,  regardless  of  the  amount  of  skill 
he  possessed  (Patten  v.  Wiggin,  51  Me.,  594;  Jack- 
son V.  Burnham,  20  Colo.,  532). 

This  rule  on  its  face  seems  harsh  and  arbitrary, 
for  its  application  and  enforcement  means  that  any 
advancement  in  the  science  of  medicine  and  sur- 
gery must  be  at  the  risk  of  the  individual  mem- 
bers of  the  profession.  To  the  profession  this 
must  be  still  more  apparent  when  they  look  back 
over  the  various  periods  of  medical  and  surgical 
history  and  see  the  marvellous  progress  which  has 
been  achieved  by  the  experiments  of  the  learned 
ones  of  the  profession.  But  such  is  the  law  with 
certain  modifications  and  it  should  be  kept  in  mind 
by  the  physician  and  surgeon. 

The  reason  for  the  rule  ,and  a  good  statement 
of  the  law  relating  to  this  question  is  in  the  opinion 
of  the  court  in  Carpenter  v.  Blake  (60  Barb.  (N. 
Y.) ,  488) .     It  was  said,  ^ '  Some  standard,  by  which 


40  The  Doctor  in  Court 

to  determine  the  propriety  of  treatment,  must  ISe 
adopted;  otherwise  experiment  will  take  the  place 
of  skill,  and  the  reckless  experimentalist  the  place 
of  the  educated,  experienced  practitioner. 

*  ^  If  the  case  is  a  new  one,  the  patient  mnst  trust 
to  the  skill  and  experience  of  the  surgeon  he  calls ; 
so  must  he  if  the  injury  or  the  disease  is  attended 
with  injury  to  other  parts,  or  other  diseases  have 
developed  themselves,  for  which  there  is  no  estab- 
lished mode  of  treatment.  But  when  the  case  is 
one  as  to  which  a  system"  of  treatment  has  been  fol- 
lowed for  a  long  time,  there  should  be  no  de- 
parture from  it,  unless  the  surgeon  who  does  it  is 
prepared  to  take  the  risk,  by  his  success,  of  the 
propriety  and  safety  of  his  experiment. 

*^The  rule  protects  the  community  against 
reckless  experiments  while  it  admits  the  adoption 
of  new  remedies  and  modes  of  treatment  only 
when  their  benefits  have  been  demonstrated,  or 
when  from  the  necessity  of  the  case,  the  surgeon 
or  physician  must  be  left  to  the  exerci'se  of  his 
own  skill  and  experience. ' ' 

Ordinary  and  established  practice  means  the 
recognized  practice  of  the  school  which  the  phy- 
sician follows.  It  is  his  right,  should  his  conduct 
be  questioned,  to  have  his  actions  tested  by  the 
laws  and  customs  of  the  particular  school  to  which 
he  adheres.  Thus,  where  a  physician  was  sued  for 
not  properly  treating  a  case,  his  conduct  would 
not  be  judged  by  allopathic  standards  if  he  fol- 
lowed the  homeopathic  school  (Force  v.  Gregory-, 


CONTKACT   OF    THE    PEOPESSIOIT  41 

63  Conn.,  167),  and  the  same  rule  would  apply  un- 
der reverse  circumstances  (Martin  v.  Courtney,  75 
Minn.,  255),  but,  where  the  treatment  is  the  same 
the  evidence  of  a  physician  of  a  different  school 
has  been  held  to  be  admissible  (Grainger  v.  Still, 
187  Mo.,  197) .  The  term  school  is  used  in  this  con- 
nection to  denote  a  recognized  system  of  treating 
diseases  and  injuries,  and  must  have  rules  of  prac- 
tice (Nelson  v.  Harrington,  72  Wis.,  591;  Grainger 
V.  Still,  187  Mo.,  197). 

So  where  a  person  practises  as  a  clairvoyant 
and  tries  to  alleviate  diseases  by  methods  usually 
employed  by  such  healers,  he  cannot  justify  his 
conduct  on  the  plea  that  he  was  following  the 
school  to  which  he  belonged.  For  such  persons  are 
held  to  the  same  degree  of  care  and  skill  and  learn- 
ing as  a  member  in  good  standing  of  a  recognized 
school  (Nelson  v.  Harrington,  72  Wis.,  591).  The 
law  does  not  distinguish  between  schools  of  medi- 
cine (White  v.  Carroll,  42  N.  Y.,  161),  and  in  as- 
suming charge  of  a  case  the  physician  undertakes 
to  treat  it  according  to  the  rules  of  the  school 
which  he  follows  (Force  v.  Gregory,  63  Conn.,  167 ; 
Patten  v.  Wiggin,  51  Me.,  594). 

The  principle  of  ordinary  care  likewise  applies 
in  giving  proper  instructions  to  the  nurse  or  other 
person  or  persons  in  attendance  on  the  patient. 
Failure  to  do  so  renders  the  physician  liable  if 
there  are  bad  results  due  to  his  negligence  (Beck 
V.  German  Klinik,  78  la.,  696).  It  is  incumbent 
upon  the  physician  to  exercise  that  degree  of  care 


42  The  Doctor  in  Court 

in  instructing  the  attendants  in  cases  where  the 
patient  needs  attention  in  his  ahsence,  which  he 
would  if  working  himself  upon  the  case  (Pike  v. 
Honsinger,  155  K  Y.,  201),  and  it  is  also  his  duty 
to  instruct  the  patient  as  well  as  the  nurse  (Car- 
penter V.  Blake,  60  Barb.  (K  Y.),  488).  But  there 
is  no  duty  imposed  upon  the  physician  himself  to 
nurse  his  iDatient  (Graham  v.  Gautier,  21  Tex., 
111). 

There  is  a  correlative  duty  on  the  part  of  the 
patient  to  do  as  he  is  told;  that  is,  he  must  co- 
operate with  the  physician  and  follow  his  instruc- 
tions and  prescriptions  (Haire  v.  Reese,  7  Phila., 
138).  If  he  refuses  to  do  this  and  the  physician 
cannot  therefore  discover  the  nature  of  the  pa- 
tient's illness,  or  he  is  thwarted  in  an  attempt  to 
apply  the  proper  means  of  remedying  the  com- 
plaint, then  the  physician  cannot  be  held  respon- 
sible for  damaging  results  (McCandless  v.  McWha, 
22  Pa.  St.,  261;  Haire  v.  Reese,  supra). 

The  patient  has  a  right  to  rely  on  the  instruc- 
tions and  directions  which  the  physician  gives  him 
(Lawson  v.  Conaway,  37  W.  Va.,  159;  18  L.  R.  A., 
627).  As  was  said  in  the  case  of  McCandless  v. 
McWha  (22  Pa.  St.,  261),  ^^ A  patient  is  bound  to 
submit  to  such  treatment  as  his  surgeon  prescribes, 
provided  the  treatment  be  such  as  a  surgeon  of 
ordinary  skill  would  adopt  or  sanction.  But  if  it 
be  painful,  injurious  and  unskilful,  he  is  not  bound 
to  peril  his  health,  and  iDcrhaps  his  life,  by  submis- 
sion to  it.    It  follows  that  before  the  surgeon  can 


CONTEACT    OF    THE    PkOFESSION  43 

shift  the  responsibility  from  himself  to  the  patient, 
on  the  ground  that  the  latter  did  not  submit  to  the 
course  recommended,  it  must  be  shown  that  the 
prescriptions  were  proper  and  adequate  to  the  end 
in  view. ' ' 

Physicians  who  are  attending  clients  with  con- 
tagious diseases  and  visiting  others  who  are  not  so 
infected  must  keep  in  mind  that  it  is  their  duty  to 
use  due  care  in  not  carrying  it  from  one  patient  to 
another;  and  that  it  is  essential  that  they  should 
take  all  measures  to  prevent  this  which  reason  and 
experience  dictate  as  being  best.  If  they  take  such 
precautionary  measures  as  are  necessary  to  pre- 
vent communication  of  the  disease  to  one  not  im- 
plicated, they  will  not  be  liable  for  untoward  re- 
sults (Piper  V.  Menifer,  51  Ky.,  565). 

Extreme  care  should  be  taken  by  the  physician 
in  making  his  calls  not  to  visit  a  patient  should  he 
have  been  obliged  to  attend  one  afflicted  with  a 
contagious  disease,  without  having  first  properly 
sterilized  himself. 

An  excellent  example  of  the  serious  conse- 
quences that  are  likely  to  follow  a  lack  of  care  un- 
der such  circumstances  has  been  called  to  the  at- 
tention of  the  writer.  During  an  epidemic  of 
smallpox  in  London  a  few  years  ago,  a  doctor  who 
had  vaccinated  the  whole  staff  of  a  large  draper 's 
establishment  there,  complained  to  the  physician 
from  whom  he  had  secured  the  vaccine  that  a  num- 
ber of  young  women  whom  he  had  vaccinated  had 
shown  symptoms  of  erysipelas  a  few  days  after  the 


44  The  Doctor  in  Court 

vaccination.  They  threatened  to  sue  him  for  dam- 
ages. 

Being  responsible  for  the  trouble  the  doctor 
put  the  blame  on  the  vaccine.  The  other  physician 
knowing  the  vaccine  was  absolutely  pure  as  it  came 
from  a  government  institute  on  the  continent  and 
as  he  had  sold  a  great  many  thousands  of  tubes 
and  had  no  similar  complaints  for  the  same  lot, 
suspected  that  there  was  something  wrong  with 
this  doctor.  He  inquired  of  the  doctor  if  during 
the  time  he  made  the  vaccinations  he  had  been  at- 
tending any  obstetrical  cases.  The  doctor  admit- 
ted he  had,  and  also  admitted  that  among  these 
cases  he  had  had  one  case  of  puerperal  fever.  The 
other  immediately  charged  him  with  not  having 
complied  with,  the  Parliamentary  Act  of  having  re- 
ported erysipelas  to  the  medical  officer  of  health 
for  his  district  and  charged  him  further  with  hav- 
ing been  careless  in  going  from  a  puerperal  fever 
case  to  perform  the  operation  of  vaccination  with- 
out having  sterilized  himself. 

When  the  doctor  reached  his  office  he  found  a 
notification  from  the  government  demanding  an  ex- 
planation as  to  why  he  had  not  reported  a  certain 
case  of  erysipelas  which  had  broken  out  in  a  cer- 
tain draper's  establishment.  The  penalties  in  Eng- 
land for  not  lodging  information  of  any  contagious 
diseases  are  very  heavy,  and  this  young  doctor 
disappeared  from  London  and  his  whereabouts 
were  not  known  for  a  long  time.    He  had  quit  his 


CONTEACT   OF   THE   PeOFESSIOK  45 

practice  and  settled  down  somewhere  else.  He 
feared  the  consequences  of  his  negligence. 

There  is  a  further  duty  on  the  physician  of  ad- 
vising his  patient  against  an  operation  which  he 
believes  in  the  light  of  his  best  judgment  to  be  in- 
judicious. ^'It  seems  to  us  to  be  the  duty  of  a 
surgeon,"  said  the  court  in  Grramm  v.  Boener  (56 
Ind.,  497),  ^^when  called  upon  to  perform  some 
surgical  operation,  to  advise  against  it,  if,  in  his 
opinion,  it  is  unnecessary,  unreasonable,  or  will  re- 
sult injuriously  to  the  patient.  The  patient  is  en- 
titled to  the  benefit  of  his  judgment,  whether  asked 
for  or  not.  If  the  surgeon,  when  called  upon, 
should  proceed  to  the  performance  of  the  opera- 
tion, without  expressing  any  opinion  as  to  its  ne- 
cessity or  propriety,  the  patient  would  have  a  right 
to  presume,  that,  in  the  opinion  of  the  surgeon,  the 
operation  was  proper.''  In  this  case  the  patient 
was  a  man  along  in  years  and  possessed  of  a  nor- 
mal mind.  He  insisted  contrary  to  the  advice  of 
his  physician  that  a  certain  operation  be  performed. 
It  was  done.  The  court  held  that  he  relied  on  his 
own  judgment  and  not  that  of  his  physician,  from 
whom  he  could  not  therefore  recover  damages  for 
deleterious  results. 

There  seems  to  be  a  very  prevalent  idea  that 
if  a  physician  is  summoned  to  attend  a  case,  he  is 
obliged  to  go,  but  no  such  rule  of  law  obtains,  and 
the  matter  is  entirely  within  his  own  discretion. 
However,  once  he  has  taken  charge  of  a  case,  the 
doctrine  of  ordinary  care  applies  in  the  matter  of 


46  The  Doctor  in  Court 

attendance.  If  the  condition  of  the  patient  is  such 
that  in  the  exercise  of  an  honest  judgment  he  be- 
lieves it  necessary  or  if  it  would  be  reasonably  ex- 
pected of  him  to  continue  his  attendance,  then  the 
law  imposes  that  obligation  upon  him.  Of  course, 
there  is  nothing  to  prevent  a  physician  and  his 
client  making  what  contract  they  like  regarding 
the  attendance.  It  can  be  for  a  long  or  short  pe- 
riod— even  one  visit;  and  in  the  absence  of  any 
special  agreement  the  physician  can,  after  giving 
reasonable  notice,  stop  attending  the  patient,  and 
y  so  doing  he  does  not  render  himself  answerable 
b  his  employer.  The  physician,  of  course,  could 
not  abandon  a  case  in  a  crisis  (Barbour  v.  Martin, 
62  Wis.,  536).  On  the  other  hand,  if  he  is  dis- 
charged by  one  in  authority  he  would  not  be  liable 
for  the  consequences  of  discontinuing  his  atten- 
tions. Generally,  however,  he  must  use  reasonable 
care  in  deciding  whether  his  visits  are  any  longer 
necessary  (Dashiell  v.  Grif&th,  84  Md.,  363;  Ballou 
V.  Prescott,  64  Me.,  305). 

In  fine  the  duties  and  legal  obligations  of  the 
physician  and  surgeon  can  be  summed  up  in  the 
saying  of  Sir  Anthony  Fitzherbert:  ^^It  is  the  duty 
of  every  artificer  to  exercise  his  art  rightly,  and 
truly,  as  he  ought."  (Further  authorities:  Amer- 
ican Digest  (Century  Edition),  title,  ^^ Physicians 
and  Surgeons, '^  §§  16-30;  Vol.  22,  American  and 
English  Encyclopgedia  of  Law,  pp.  798-809;  Vol. 
30,  Cyclopedia  of  Law  and  Procedure,  pp.  1570- 
1574.) 


CHAPTEE  in 

CIVIL    EESPON'SIBILITY    OF    THE    PEOFESSION" 

It  has  been  shown  that  the  correlative  duties 
of  physicians  and  surgeons  and  their  patients  arise 
from  the  contractual  relations  of  the  parties,  either 
by  express  agreements,  or,  as  is  more  often  the 
case,  by  implication  of  law  from  their  conduct  or 
acts.  Certain  duties  are  imposed  upon  the  profes- 
sion. Failure  to  discharge  these  obligations  in  the  ^ 
proper  manner  renders  the  professional  man  lia- 
ble to  his  patient  if  injury  results.  The  basic  prin- 
ciple of  the  doctrine  is  that  one  who  engages  to 
undertake  the  performance  of  any  duty,  trust,  or 
employment  agrees  to  do  it  with  honesty,  skill, 
and  assiduity.  The  injured  person  has  his  option 
of  suing  in  tort  or  contract  (Goble  v.  Dillon,  86 
Ind.,  327). 

The  principles  of  law  which  bear  upon  ques- 
tions growing  out  of  an  alleged  dereliction  of  duty 
on  the  part  of  the  physician  and  surgeon  come  un- 
der the  division  known  as  the  law  of  negligence,  y 
Negligence  may  be  by  errors  of  omission  or  comv^ 
mission.  If  one  fails  to  do  something  which  a  rea- 
sonable man  under  like  circumstances  with  regard 
to  those  things  which  ordinarily  regulate  the  af- 

47 


48  The  Doctor  in  Court 

fairs  of  man,  would  do ;  or  if  he  does  some  act  which 
a  reasonable  and  prudent  man  would  not,  then  he 
is  in  the  legal  sense  negligent,  provided  there  is 
some  duty  or  obligation  left  uncompleted.  It  would 
seem  from  an  examination  of  malpractice  cases 
that  errors  of  omission  are  treated  with  greater 
leniency  by  the  courts  than  errors  of  commission. 

Now  there  are  various  degrees  of  negligence 
known  to  the  law.  The  degrees  of  care  exacted 
under  different  conditions  may  be  divided  into 
three  groups.  First,  there  is  the  highest  degree 
which  it  is  possible  for  human  beings  to  attain, 
where  the  slightest  error  renders  the  negligent 
party  liable  in  an  action  for  damages. 

For  example,  a  common  carrier  of  passengers 
is  held  to  this  highest  degree  of  care,  though  as 
has  been  observed  the  physician  and  surgeon  is 
not  required  to  exercise  this  extraordinary  degree 
of  diligence.  But  he  must  employ  th^^'nextde- 
gree,  known  as  ordinary  or  reasonable  care.  (See 
the  instructions  to  the  jury  in  the  case  of  Kendall 
V.  Brown,  86  111.,  387.) 

Lastly,  we  have  what  is  termed  gross  negli- 
gence, which  may  be  so  wilful  or  wanton  as  to 
show  an  intent  to  harm  some  person,  yet  one  may 
be  grossly  negligent  without  the  element  of  malice 
entering  his  conduct. 

In  England  formerly  the  physician  was  consid- 
ered liable  only  so  far  as  one  who  performs  a 
service  gratuitously  was  held  amenable  to  the  law, 
which  was  for  failure  to  use  the  lowest  degree  of 


CiviLi  Responsibility  49 

care  in  the  scale  called  gross  negligence.  A  phy- 
sician at  common  law  before  the  j^assage  of  the 
Medical  Act  (21  and  22  Victoria)  could  not  sne 
to  recover  compensation  for  his  services  (Chorley 
V.  Bolcot,  4  T.  E.,  317) ;  though  a  surgeon  was  not 
subject  to  any  such  disability  and  could  maintain 
an  action  for  his  fees.  (See  chapter  on  Remunera- 
tion.) Accordingly,  surgeons  as  well  as  apothe- 
caries were  held  to  the  ordinary  degree  of  care. 
(Shearman  and  Redfield  on  Negligence,  500.)  The 
reason  for  not  then  holding  the  physician  to  the 
same  degree  of  care  as  a  surgeon  was  because  his 
services  were  regarded  as  being  rendered  for  an 
honorarium. 

The  Roman  law,  however,  did  not  recognize  any 
ditference  between  physicians  and  surgeons,  hold- 
ing that  they  must  use  ordinary  care  regardless  of 
whether  they  were  to  be  compensated  or  not.  Such 
is  the  United  States  rule.  The  law  in  this  country 
does  not  distinguish  between  physicians  and  sur- 
geons. They  are  alike  subject  to  the  same  duties 
and  legal  obligations.  Compensation  is  an  imma- 
terial consideration.  (See  chapter  on  Remunera- 
tion.) 

There  is  an  old  and  important  principle  of  law 
that  figures  prominently  as  a  defence  in  many 
cases  where  negligence  is  the  gist  of  the  action.  It 
is  called  the  doctrine  of  contributory  negligence. 
Where  a  person  is  injured  by  reason  of  another's 
negligence,  it  must  appear  as  a  condition  precedent 
to  his  getting  judgment  against  the  other  that  his 


50  The  Doctor  in  Couet 

own  conduct  was  blameless  and  did  not  contribute 
materially  to  the  cause  of  the  injuries.  For,  if  Ms 
negligence  united  with  tbat  of  the  defendant,  he  is 
barred  from  recovering  damages. 

This  rule  with  its  limitations  applies  in  those 
cases  where  it  is  sought  to  hold  a  physician  and 
surgeon  responsible  for  negligence  or  malpractice, 
and  it  may  be  taken  as  generally  true  that  where 
the  ]3atient  does  not  co-operate  with  his  physician, 
thereby  injuring  himself  by  his  own  wilful  or 
negligent  conduct,  he  cannot  hold  the  practitioner 
responsible  for  the  results  to  which  he  contributed 
(Hibbard  v.  Thompson,  109  Mass.,  286;  Grramm  v. 
Boener,  56  Ind.,  497 ;  Haire  v.  Eeese,  7  Phila.,  138 ; 
McCandless  v.  McWha,  22  Pa.  St.,  261).  Accord- 
ingly it  has  been  held  that  where  a  physician  told 
a  patient  to  visit  him  again  and  the  patient  failed 
to  put  in  an  appearance  as  directed,  he  could  not 
hold  the  physician  liable,  because  he  was  himself 
negligent  (Jones  v.  Angell,  95  Ind.,  376). 

By  far  the  greater  number  of  cases  in  which 
this  question  of  contributory  negligence  plays  a 
part  has  been  where  the  patient  has  not  faithfully 
discharged  his  duty  of  complying  with  the  reason- 
able instructions'  and  directions  of  his  physician 
as  the  law  says  he  should  (Haire  v.  Eeese,  7  Phila., 
138 ;  McCandless  v.  McWha,  22  Pa.  St.,  261) .  The 
case  given  above  is  a  good  illustration.  There  is 
a  harmonious  line  of  decisions  holding  that  if  the 
patient  either  wilfully  or  negligently  disobeys  the 
instructions  given  him  he  is  barred  from  recovery 


Civil  Eesponsibility  51 

(Geiselman  v.  Scott,  25  Ohio  St,  86;  Haire  v. 
Reese,  7  Phila.,  138 ;  Whitesell  v.  Hill,  101  la.,  629), 
and  it  makes  no  difference  whether  or  not  he  was 
prevented  from  following  the  physician's  direc- 
tions because  of  his  condition  (Geiselman  v.  Scott, 
25  Ohio  St.,  86).  In  such  cases  the  instractions 
and  directions  which  the  physician  gives  may  be 
taken  into  consideration  in  determining  the  ques- 
tion of  the  patient's  negligence  (Geiselman  v. 
Scott,  25  Ohio  St.,  86). 

There  is  also  a  presumption  in  favor  of  the 
members  of  the  profession,  in  the  absence  of  con- 
trary proof,  that  they  were  skilful  and  used  due 
care  (Jacksonville  Street  E.  Co.  v.  Chappell,  21 
Fla.,  175;  Leighton  v.  Sargent,  31  N.  H.,  119; 
Baird  v.  Morford,  29  la.,  531;  Haire  v.  Reese,  7 
Phila.,  138).  In  other  words  the  burden  of  show- 
ing a  want  of  the  necessary  skill,  care  and  knowl- 
edge in  the  prescriptions,  directions,  and  method 
of  treatment  must  be  proved  at  the  trial  by  the 
patient  in  order  to  secure  judgment  against  the 
physician.  On  the  other  hand  the  burden  of  prov- 
ing contributory  negligence  is  on  the  defendant 
(Gramm  v.  Boener,  56  Ind.,  497). 

There  is,  however,  a  class  of  cases  in  which  the 
negligence  of  the  patient  follows  that  of  the  phy- 
sician and  the  injury  done  through  the  latter 's  un- 
skilful or  careless  conduct  is  simply  aggravated 
and  made  more  serious.  In  a  New  York  case  (Car- 
penter V.  Blake,  75  N.  Y.,  12),  which  was  an  ac- 
tion for  malpractice,  the  defendant  requested  the 


52  The  Doctor  in  Court     \ 

court  to  instruct  the  jury  in  substance,  that  if  the 
plaintiff  was  negligent  in  any  way,  with  or  with- 
out guilt  on  the  part  of  the  defendant  who  attended 
her,  and  such  negligence  in  a  material  degree  con- 
tributed to  the  poor  result,  the  defendant  could 
not  be  held  responsible.  This  charge  was  held  to  be 
erroneous  because  if  there  had  been  negligence  on 
the  part  of  the  plaintiff  subsequent  to  that  of  the 
defendant,  the  plaintiff's  right  of  action  had  al- 
ready accrued  and  would  not  therefore  be  dis- 
charged. The  court  added  that  in  any  view  the 
negligence  of  the  patient  following  that  of  the  phy- 
sician would  go  merely  to  mitigate  the  damages. 

So  also  in  a  case  where  the  plaintiff's  foot  was 
crushed  and  the  limb  was  amputated  at  the  knee 
but  failed  to  heal  properly  so  that  several  inches 
of  the  bone  protruded,  it  was  held,  the  fact  that 
the  defendant  refused  to  keep  his  leg  elevated  as 
directed,  thereby  causing  hemorrhages,  and  negli- 
gently omitted  to  take  medicine  prescribed  for  him, 
did  not  defeat  his  right  of  action  and  his  negligence 
would  only  go  toward  cutting  down  the  amount  of 
damages  (Du  Bois  v.  Decker,  130  N.  Y.,  325;  see, 
also,  Wilmot  v.  Howard,  39  Vt.,  447). 

The  negligence  of  the  plaintiff  then  must  be 
the  proximate  cause  of  the  injury  and  inseparable 
from  and  contemporaneous  with  the  negligence  of 
the  defendant  in  order  to  be  used  as  a  successful 
defence  in  an  action  for  malpractice  (Newhouse  v. 
Miller,  35  Ind.,  463;  Lawson  v.  Conaway,  37  W. 
Va.,  159),  because  if  the  negligence  is  unmixed  and 


Civil  Responsibility  53 

can  be  distinguished,  and  the  plaintiff  can  show 
that  there  was  injury  resulting  solely  from  his  lack 
of  care,  skill,  and  diligence,  then  he  can  recover. 

The  court  said  in  Hihhard  v.  Thompson  (109 
Mass.,  286),  commenting  on  the  importance  of  this 
limitation  to  the  ordinary  rule,  ^ '  .  .  .  a  phy- 
sician may  he  called  to  prescribe  for  cases  which 
originated  in  the  carelessness  of  the  patient;  and 
though  such  carelessness  would  remotely  contribute 
to  the  injury  sued  for,  it  would  not  relieve  the 
physician  from  liability  for  his  distinct  negligence, 
and  the  separate  injury  occasioned  thereby.  The 
patient  may  also,  while  he  is  under  treatment,  in- 
jure himself  by  his  own  carelessness,  yet  he  may 
recover  from  the  physician  if  he  carelessly  or  un- 
skilfully treats  him  afterward  and  thus  does  him  a 
distinct  injury.  In  such  cases,  the  plaintiff's  fault 
does  not  directly  contribute  to  produce  the  injury 
sued  for." 

Another  principle  of  law  very  much  like  this 
doctrine  of  contributory  negligence  is  that  of  the 
assumption  of  the  risk.  The  law  says  that  where 
a  person  knows  the  dangers  incidental  to  certain 
undertakings,  he  is  by  law  deemed  to  have  as- 
sumed the  risk  and  consequently  cannot  complain 
if  injury  results.  From  this  it  would  seem  that  a 
physician  and  surgeon  can  forestall  malpractice 
suits  against  himself  by  warning  the  patient  of  un- 
pleasant possibilities  and  expressly  stipulating  with 
him  that  in  such  contingency  he  shall  not  be  an- 
swerable  (Nelson  v.  Harringi;on,  72  Wis.,  591). 


54  The  Doctor  in  Court 

As  most  of  tlie  litigation  in  whicli  the  members  of 
the  profession  have  been  involved  have  been  in 
cases  of  dislocations,  fractures,  and  amputations 
(McClelland  on  Civil  Malpractice,  55),  it  is  always 
best  to  tell  the  patient  that  a  perfect  result  is  by 
no  means  certain. 

If  the  physician  states  that  he  is  not  possessed 
of  much  knowledge  of  certain  illnesses  or  injuries, 
and  the  patient  then  sees  fit  to  hire  him,  he  cannot 
afterward  hold  him  to  account  for  a  lack  of  knowl- 
edge and  skill  which  he  knew  the  physician  did 
not  possess  (Shearman  and  Eedfield  on  Negligence, 
607). 

It  must  not,  however,  be  supposed  that  this  as- 
sumption of  the  risk  will  excuse  the  practitioner 
from  liability  when  he  does  not  use  skill  and  care. 
This  question  was  squarely  raised  in  a  very  recent 
case  before  the  Missouri  Court  of  Appeals  (Hales 
V.  Eaines,  162  Mo.  App.,  46).  The  defendant,  it 
appeared,  undertook  to  treat  the  plaintiff's  hand 
by  the  use  of  the  X-ray,  resulting  in  a  bum  which 
seriously  injured  the  member.  It  was  contended 
that  the  plaintiff  had  been  warned  by  the  defendant 
that  the  use  of  this  appliance  involved  some  dan- 
ger and  by  consenting  to  such  treatment  he  as- 
sumed the  risk  and  could  not  recover  damages  for 
the  negligence  of  the  physician.  The  court  in  up- 
setting this  contention  said:  ^'Touching  the  matter 
of  assumed  risk  with  which  alone  we  are  con- 
cerned here,  it  appears  quite  clear  that  if,  in  the 
circumstances   stated,   the   parties   contract  with 


Civil  Eesponsibility  55 

respect  to  the  assumption  of  the  risk  from  sucli 
danger  as  is  involved  in  the  use  of  the  X-ray,  a 
new  appliance  not  well  understood,  the  risk  assmned 
is  one  other  and  distinct  from  that  which  is  intro- 
duced into  the  case  by  the  defendant's  negligence. 
In  other  words,  though  the  plaintiff  should  be  re- 
garded as  having  assumed  by  express  agreement 
such  risks  as  attend  the  employment  of  the  X-ray, 
this  agreement  essentially  implied  a  careful  and 
skilful  application  thereof  on  the  part  of  the  de- 
fendant. We  deem  it  contrary  to  the  precepts  of 
public  policy  to  declare  such  agreement  valid  in 
the  full  measure  of  its  scope  and  entail  upon  the 
plaintiif ,  as  within  it,  the  consequences  of  the  de- 
fendant's negligence  in  exposing  his  hand  nine 
separate  times  within  one-half  inch  of  the  tube; 
for  consent  concerning  such  matters  avails  noth- 
ing unless  due  care  and  skill  is  employed  by  the 
physician."  (See,  also,  Commonwealth  v.  Pierce, 
138  Mass.,  165;  State  v.  Gile,  8  Wash.,  12.) 

This  case  must  not  be  confused  with  that  of 
Gramm  v.  Boener,  given  heretofore,  where  a  phy- 
sician advised  his  patient  against  an  injudicious 
operation,  and  the  plaintiff,  relying  on  his  own 
judgment,  insisted  upon  having  it  performed.  The 
operation,  though  unsuccessful,  was  performed  by 
the  physician  with  due  care  and  skill,  and  in  the 
suit  which  followed  the  plaintiff  was  not  allowed  to 
recover  damages. 

The  question  now  arises,  if  the  physician  and 
surgeon  cannot  be  successfully  sued  for  negligence 


56  The  Doctok  in  Coubt 

or  malpractice  when  the  negligence  of  the  patient 
blended  with  his  o^vn  carelessness  or  recklessness, 
can  he  be  held  responsible  for  the  negligent  con- 
duct of  a  third  person  having  some  connection  with 
the  case  1  The  answer  to  this  depends  on  the  rela- 
tionship of  the  parties.  If  there  was  no  business 
relationship  as  that  of  agency  or  partnership 
between  the  physician  and  the  negligent  third 
person,  then  he  cannot  be  held  answerable  for  that 
person's  conduct  (Myers  v.  Holbom,  58  N.  J.  L., 
193 ;  Hitchcock  v.  Burgett,  38  Mich.,  501 ;  Keller  v. 
Lewis,  65  Ark.,  578).  Thus  where  a  surgeon  in- 
formed his  patient  that  he  was  going  away  for 
two  weeks  and  said  that  a  certain  surgeon  would 
treat  the  case  while  he  was  absent  and  the  latter 
was  negligent  in  his  treatment  of  the  patient,  the 
court  said  that  the  former  surgeon  would  not  be 
responsible  for  the  injury  done  the  patient  in  his 
absence  if  no  business  relationship  existed  between 
the  two  surgeons  (Keller  v.  Lewis,  65  Ark.,  578). 

The  converse  of  this  proposition  of  law  is  also 
true:  if  the  relationship  of  agency  or  partnership 
can  be  shown  to  exist  they  are  both  liable  to  the 
patient  if  the  negligent  third  party  acted  within 
the  scope  of  his  authority  (Hancke  v.  Hooper,  7 
C.  and  P.,  81;  Hess  v.  Lowrey,  122  Ind.,  225; 
Langdon  v.  Humphrey,  9  Conn.,  209 ;  Hyme  v.  Er- 
win,  23  S.  C,  226).  The  negligence  of  the  agent 
or  partner  is  imputed  to  the  other. 

The  liabihty  growing  out  of  these  relationships 
is  not  peculiar  to  physicians  and  surgeons  alone, 


Civil  Eesponsibility  57 

but  is  applicable  to  all  persons  between  whom  sucli 
relationships  are  manifest.  It  is  a  cardinal  rule 
of  the  law  of  agency  that  the  principal  is  liable  for 
the  torts  of  his  agent  committed  in  the  course  of 
Ms  employment.  The  connection  between  the  law 
of  agency  and  the  law  of  partnership  is  very  close, 
as  a  partner  can  bind  his  co-partner  by  acts  which 
are  within  the  limits  of  the  objects  and  purposes 
of  the  partnership.  It  follows  that  there  is  mutual 
liability  among  partners  for  their  torts  committed 
in  the  scope  of  their  vocation  or  business,  but  if  a 
partner  or  agent  goes  on  a  ^^ frolic  of  his  own"  the 
others  are  not  responsible  for  the  results.  There 
would  be  no  liability  on  the  part  of  a  physician  for 
the  negligence  of  nurses  in  a  hospital  over  whom 
he  had  no  authority  (Sanderson  v.  Holland,  39 
Mo.  App.,  233;  Baker  v.  "Wentworth,  155  Mass., 
338).  " 

Negligence  of  a  third  person  contemporaneous 
with  that  of  the  defendant  is  no  defence  (Cooley 
on  Torts,  684) ;  that  is  to  say,  contributory  negli- 
gence on  the  part  of  another,  not  the  patient,  con- 
curring with  that  of  the  physician  or  surgeon  hav- 
ing charge  of  the  case  cannot  defeat  a  recovery  of 
damages  by  the  patient  against  the  physician  (San- 
derson V.  Holland,  39  Mo.  App.,  233).  For  illus^ 
tration:  where  a  physician  wrote  a  prescription 
which  by  lapsus  calami  had  pulv,  instead  of  campJi, 
following  opii,  and  the  patient  took  it  and  died,  it 
was  held  in  a  suit  against  the  physician  for  mal- 
practice that  the  fact  that  the  druggist  who  fiUed 


58  The  Doctok  in  Couet 

the  prescription  may  have  been  negligent  in  not 
noticing  the  mistake,  was  no  defence  to  the  phy- 
sician who  wrote  it  (Mnrdock  v.  Walker,  43  111. 
App.,  590). 

There  is  a  principle  of  law  long  established  that 
a  person  is  chargeable  with  the  natural  and  prob- 
able consequences  of  his  acts.  The  physician  and 
surgeon  is  no  exception  to  this  rule.  The  mem- 
bers of  the  profession  in  their  treatment  of  patients 
and  their  application  of  drugs  and  the  remedial  ap- 
pliances are  bound  to  know  the  results  of  their  ac- 
tions and  are  answerable  for  negligence  if  the  con- 
dition of  the  patient  is  such  that,  by  exercising  the 
professional  skill  they  are  presumed  to  have,  they 
would  know  such  results  would  in  all  probability 
follow  (Du  Bois  V.  Decker,  130  N.  Y.,  325). 

But  where  they  have  no  knowledge  of  the 
idiosyncrasies  of  the  patient,  they  cannot  be  held 
for  injurious  results  when  they  exercise  ordinary 
care  and  skill.  So  where  an  anesthetic  is  admin- 
istered the  physician  cannot  be  made  accountable 
for  results  due  to  the  peculiar  temperament  of  the 
patient  of  which  he  was  not  aware  (Bogle  v.  Wins- 
low,  5  Phila.,  136).  If  the  courts  laid  down  a  more 
strict  rule  in  this  respect,  the  nerve  of  the  phy- 
sician might  be  shaken  or  his  judgment  impaired 
by  the  fear  of  accountability  just  at  a  time  when 
his  mental  activity  must  be  free  and  undisturbed, 
that  the  patient  may  be  benefited. 

In  the  chapter  on  the  Contract  of  the  Profession 
it  was  said  that  there  is  a  duty  on  the  part  of  the 


Civil  Eespoksibility  59 

physician  to  take  care  not  to  carry  a  contagions  dis- 
ease from  one  patient  to  another.  From  a  very  re- 
cent decision  of  the  supreme  conrt  of  Washington 
(Helland  v.  Bridenstine,  55  Wash.,  470;  104  Pac. 
E.,  626),  it  appears  that  there  may  be  liability  for 
commnnicating  diseases  through  the  agency  of  un- 
clean instruments.  In  the  case  in  question  the 
plaintitf  sought  the  advice  of  the  defendant  be- 
cause of  a  nervous  trouble  with  which  she  had 
been  afflicted  for  several  years.  The  defendant's 
treatment  not  affording  the  desired  relief,  he  told 
her  it  was  his  opinion  that  she  had  some  disorder 
of  the  genital  organs  and  he  would  examine  her 
in  his  office.  This  he  did,  using  a  speculum  and 
probe  which  he  took  from  a  drawer  close  by.  The 
instruments  were  wrapped  in  a  towel,  the  defend- 
ant using  them  as  he  took  them  out.  Within  the 
time  after  this  usual  for  gonorrhea  to  generate, 
the  plaintiff  had  pains  and  inflammation  of  the 
parts  accompanied  by  a  discharge.  The  defendant 
treated  her  for  some  time  until  finally  another 
physician  was  called  in,  who  diagnosed  the  disease 
as  gonorrhea.  Plaintiff  also  testified  she  had  not 
had  intercourse  with  her  husband  for  several  weeks 
prior  to  the  examination,  and  the  only  way  she 
could  have  contracted  the  disease  was  from  the  in- 
struments of  the  defendant.  The  defendant  testi- 
fied that  the  instruments  were  always  washed  in 
a  mercuric  iodin  solution  and  soap  and  hot  water 
besides  being  sterilized  by  boiling  in  hot  water  be- 
fore they  were  used.    There  was  a  verdict  for  the 


60  The  Doctok  in  Couet 

plaintiff.    The  court  held  there  was  sufficient  evi- 
dence to  submit  the  case  to  the  jury. 

An  action  will  lie  against  a  physician  if  he  fails 
to  use  ordinary  care  and  skill  in  diagnosing  a  case 
which  has  been  committed  to  him  for  treatment  or 
merely  for  the  purpose  of  making  an  examination 
for  information,  as  where  a  man  who  was  engaged 
to  be  married  was  examined  at  the  request  of  the 
father  of  his  fiancee,  and  the  physician  making 
the  examination  said  he  was  afflicted  with  a  venereal 
disease,  which  erroneous  diagnosis  resulted  in  the 
breaking  off  of  the  engagement,  the  court  held  that 
damages  could  be  recovered  from  the  physician 
(Harriott  v.  Plimpton,  166  Mass.,  585).  It  mad© 
no  difference  in  the  above  case  that  the  physician 
was  hired  by  a  third  person. 

While  the  duty  of  being  faithful,  skilful,  and 
careful  in  dealing  with  the  patient  rests  substan- 
tially on  the  ground  of  contract,  it  would  seem  from 
this  case  and  those  cited  elsewhere  that  the  duties 
of  the  physician  and  the  liability  attendant  on  a 
failure  to  discharge  those  duties  properly  may  arise 
from  the  mere  undertaking  or  relationship  of  doc- 
tor and  patient. 

It  is  a  question  of  fact  for  the  jury  to  deter- 
mine as  to  whether  or  not  due  care  and  skill  w^ere 
used  by  the  physician  in  making  the  diagnosis 
(Harriott  v.  Plimpton,  supra).  An  erroneous  di- 
agnosis does  not  necessarily  give  a  right  of  action 
to  the  injured  party,  but  must  have  been  the  result 
of  negligence  or  a  want  of  skill  on  the  part  of  the 


Civil  Eesponsibility  [61 

physician,  though  a  wrong  diagnosis  followed  by 
improper  treatment  is  good  ground  for  an  action 
for  malpractice  (Smith  v.  Overby,  30  Ga.,  241). 

A  breach  of  the  relationship  between  a  phy- 
sician and  his  patient  by  the  deceit  of  the  former 
may  render  him  liable  to  his  patient.  An  interest- 
ing case  of  this  description  arose  a  few  years  ago 
in  Michigan  (De  May  v.  Eoberts,  46  Mich.,  160). 
At  the  trial  it  appeared  that  the  patient  lived  some 
distance  from  the  physician.  It  was  a  confinement 
case;  the  doctor  was  summoned;  the  night  was 
disagreeable  and  travelling  over  the  road  on  foot 
was  the  only  way  in  which  the  physician  could 
reach  the  patient's  house.  Illness  and  overwork 
prompted  the  doctor  to  take  with  him  an  unpro- 
fessional man  to  assist  him  in  carrying  necessary 
articles.  To  the  husband  of  the  patient  the  doc- 
tor explained  that  he  had  brought  a  friend  along 
to  aid  in  carrying  his  things. 

The  friend  was  not  known  to  either  the  hus- 
band or  the  patient,  but  they  supposed  he  was  a 
doctor  or  a  student  and  made  no  objection  to  his 
being  present  in  the  house,  which  had  only  one 
room.  His  conduct  and  manner  was  not  objec- 
tionable. The  Supreme  Court  affirmed  the  judg- 
ment of  the  lower  court  against  the  physician  and 
his  non-professional  assistant,  saying  amongst 
other  things:  ^^It  would  be  shocking  to  our  sense 
of  right,  justice  and  propriety  to  doubt  even  but 
that  for  such  an  act  the  law  would  afford  an  ample 
remedy.    To  the  plaintiff  the  occasion  was  a  most 


62  The  Doctok  in  Coukt 

sacred  one,  and  no  one  had  a  right  to  intrude  un- 
less invited,  or  because  of  some  real  and  pressing 
necessity,  which  it  is  not  joretended  existed  in  this 
case.  The  x)laintiff  had  a  legal  right  to  the  privacy 
of  her  apartment  at  such  a  time,  and  the  law  se- 
cures to  her  this  right  by  requiring  others  to  ob- 
serve it  and  to  abstain  from  its  violation.  In  ob- 
taining admission  at  such  a  time  and  under  such 
circumstances  without  fully  disclosing  his  true 
character,  both  parties  were  guilty  of  deceit,  and 
the  wrong  thus  done  entitles  the  injured  party  to 
recover  the  damages  afterward  sustained  from 
shame  and  mortification  upon  discovering  the  true 
character  of  the  defendants. ' ' 

The  performance  of  a  surgical  operation  on  a 
patient  whose  consent  has  not  been  obtained  will 
render  the  operator  liable  in  damages  to  that  per- 
son, as  will  be  seen  by  the  cases  hereinafter  given. 
The  court  of  last  resort  in  Illinois  (Pratt  v.  Da^ds, 
118  m.  Ai3i3.,  161)  said  in  a  very  late  case :  ^^  Under 
a  free  government,  at  least,  the  free  citizen's  first 
and  greatest  right,  which  underlies  all  others — 
the  right  to  the  inviolability  of  his  person ;  in  other 
words,  the  right  to  himself — is  the  subject  of  uni- 
versal acquiescence,  and  this  right  necessarily  for- 
bids a  surgeon  or  physician,  however  skilful  or 
eminent,  who  has  been  asked  to  examine,  diagnose, 
advise  and  prescribe  (which  are  at  least  first  steps 
in  treatment  and  care),  to  violate,  without  permis- 
sion, the  bodily  integrity  of  his  patient  by  a  major 
or  capital  operation,  placing  him  under  anesthetics 


Civil  Responsibility  63 

for  that  purpose,  and  operating  upon  him  without 
his  consent  or  knowledge. ' ' 

A  text  writer  has  this  to  say  (1  Kinkhead  on 
Torts,  375) :  ^^The  patient  must  be  the  final  arbiter 
as  to  whether  he  shall  take  his  chances  with  the 
operation,  or  take  his  chances  living  without  it. 
Such  is  the  natural  right  of  the  individual,  which 
the  law  recognizes  as  a  legal  one.  Consent,  there- 
fore, of  an  individual,  must  be  either  expressly  or 
impliedly  given  before  a  surgeon  has  the  right  to 
operate. ' ' 

Naturally  consent  in  most  cases  is  inferred  from 
the  circumstances  unless  the  patient  was  deceived 
(Pratt  V.  Davis,  224  111.,  300;  7  L.  R.  A.  (N.  S.), 
609).  It  has  been  held  where  the  husband  of  a  pa- 
tient who  had  a  dangerous  disease,  had  the  patient 
taken  some  little  distance  from  their  home  and  put 
under  the  care  of  a  physician,  and  a  few  weeks 
afterward  the  physician  operated  on  her  despite 
the  fact  that  the  husband's  consent  had  not  been 
given  to  that  particular  operation,  that  the  physi- 
cian was  justified  and  did  not  exceed  his  authority 
in  performing  the  operation  if  in  the  exercise  of  his 
discretion  he  believed  it  necessary  (McCallen  v. 
Adams,  19  Pick.  (Mass.),  333). 

In  another  case  (Pratt  v.  Davis,  224  HI.,  300; 
7  L.  R.  A.  (N.  S.),  609),  the  patient  was  suffer- 
ing from  a  contracted  and  lacerated  uterus,  and  the 
lower  portion  of  the  rectum  was  diseased.  To  alle- 
viate these  difficulties  a  minor  operation  was  per- 
formed with  the  consent  of  the  patient's  husband. 


64  The  Doctok  in  Court 

This  operation  was  ■ansuccessful.  The  husband 
was  requested  to  bring  his  wife  to  the  physician 
again  for  treatment,  which  he  did.  She  was  oper- 
ated on  and  her  uterus  and  ovaries  removed.  The 
court  held  that  the  husband  ^s  consent  was  not 
shown  by  these  circumstances. 

Again  where  a  woman  was  operated  on  for 
cancer  of  the  breast  and  the  husband  believed  it  to 
be  a  tumor  and  consented  to  the  operation,  but  ex- 
pressly stated  that  if  the  growth  was  a  cancer  of 
the  breast  he  did  not  want  it  removed,  it  was  held 
that  as  it  appeared  the  wife  was  aware  she  had 
cancer  of  the  breast,  the  physician  could  not  be 
held  liable.  Said  the  court:  ^^If  she  consented  to 
the  operation,  the  doctors  were  justified  in  per- 
forming it,  if,  after  consultation,  they  deemed  it 
necessary  for  the  preservation  and  prolongation  of 
the  patient's  life.  Surely  the  law  does  not  author- 
ize the  husband  to  say  to  his  wife,  ^You  shall  die 
of  cancer;  you  cannot  be  cured,  and  a  surgical 
operation,  affording  only  temporary  relief,  will  re- 
sult in  useless  expense. '  The  husband  has  no  power 
to  withhold  from  his  wife  the  medical  assistance 
which  her  case  might  require''  (State  use  of  Jan- 
ney  v.  Housekeeper,  70  Md.,  162). 

Gases,  of  course,  will  arise  demanding  quick  ac- 
tion on  the  part  of  the  physician  to  preserve  the 
life  or  health  of  the  patient,  when  there  will  be  no 
opportunity  to  secure  consent  to  perform  an  opera- 
tion from  those  who  are  naturally  consulted  in 
such  matters.    Perhaps  a  person  meets  with  an  ac- 


Civil  Responsibility  65 

cidental  injury  and  is  taken  to  a  private  physician 
close  by.  The  injured  person  may  be  intoxicated, 
or  unconscious  from  the  injury.  He  may  be  a 
minor ;  there  may  be  no  means  of  identifying  him. 
An  operation  is  imperative.  The  doctor  is  justified 
in  performing  the  operation  if  in  the  light  of  his 
best  judgment  it  is  necessary.  If  he  uses  the  req- 
uisite skill  and  care  in  so  doing,  he  will  not  be 
responsible  for  the  results. 

As  the  physician  or  surgeon  may  be  subse- 
quently criticised  or  even  sued  for  malpractice,  it 
is  best  for  him  to  do  everything  to  protect  himself. 
Thus  in  the  case  of  a  private  physician  it  would 
be  a  good  precautionary  measure  for  him  to  call  in 
another  member  of  the  profession  in  consultation. 
Any  case  must  be  proved  from  the  attending  cir- 
cumstances, and  other  evidence  besides  that  of  the 
defendant  himself  in  his  behalf  is  invaluable. 
Again,  during  an  operation  already  authorized, 
new  conditions  may  be  discovered  or  may  develop 
in  the  most  unexpected  manner,  and  in  such 
emergency  cases  the  physician  will  be  justified  in 
performing  an  operation  without  any  consent,  if 
the  operation  is  necessary  and  expedient  (Pratt  v. 
Davis,  supra;  Mohr  v.  Williams,  95  Minn.,  261; 
1  L.  R.  A.  (N.  S.),  439).  It  has,  however,  been  de- 
cided that  the  fact  of  a  doctor's  refusing  assist- 
ance which  was  offered  by  other  members  of  the 
profession  did  not  mean  that  he  failed  to  use  the 
skill  and  care  required  (Potter  v.  Warner,  91  Pa. 
St.,  362). 


66  The  Doctor  in  Court 

In  all  these  cases  of  alleged  unautliorized  sur- 
gical operations  the  burden  of  proving  that  the 
operation  was  not  justified  by  consent  of  the  proper 
person  rests  upon  the  plaintiff.  There  is  also  a 
prima  facie  presumption  that  it  was  performed 
with  care  and  skill  in  the  belief  that  it  was  proper 
(State  use  of  Janney  v.  Housekeeper,  70  Md.,  162). 

The  criterion  of  careful  conduct  in  a  given  case, 
as  was  stated  at  the  outset  of  this  chapter,  is  that 
of  the  usually  prudent  man  acting  under  like  cir- 
cumstances. It  is  not  the  opinion  of  the  individual 
and  therefore  it  is  ordinarily  no  defence  to  an  ac- 
tion for  negligence  that  the  man  acted  according 
to  his  best  judgment.  There  is,  however,  a  well- 
recognized  variation  from  this  general  principle  or 
rule  of  law.  It  appears  in  cases  involving  ques- 
tions purely  of  theory  or  opinion  or  judgment. 
Judge  Jaggard,  in  Staloch  v.  Holm  (100  Minn., 
276;  9  L.  R.  A.  (N.  S.),  712;  111  N.  W.,  264),  after 
stating  that  malpractice  cases  may  come  withia  this 
exception  to  the  general  rule,  said:  ^'A  physician 
entitled  to  practise  his  profession,  possessing  the 
requisite  qualifications,  and  applying  his  skill  and 
judgment  with  due  care,  is  not  ordinarily  liable  for 
damages  consequent  upon  an  honest  mistake  or  an 
error  of  judgment  in  making  a  diagnosis,  in  pre- 
scribing treatment,  as  in  determining  upon  an  oper- 
ation, where  there  is  a  reasonable  doubt  as  to  the 
nature  of  the  physical  conditions  involved,  or  as  to 
what  should  have  been  done,  in  accordance  with 
recognized  authority  and  good  current  practice. '' 


Civil  Eesponsibility  67 

It  is  important  to  remember  that  this  exception 
is  not  applicable  to  all  acts  which  a  physician  and 
snrgeon  may  do  in  his  professional  capacity.  The 
point  of  difference  lies  here.  Let  ns  again  quote 
from  Judge  Jaggard's  learned  opinion.  * '  There  is 
often  a  fundamental  difference  in  malpractice 
cases  between  mere  errors  of  judgment  and  negli- 
gence in  previously  collecting  data  essential  to  a 
proper  conclusion  or  in  consequent  conduct  in  the 
subsequent  selection  and  use  of  instrumentalities 
with  which  the  medical  man  may  execute  his  judg- 
ment. In  some  matters,  medicine  is  a  science ;  in 
others,  an  art.  Generally  the  exception  governs 
cases  in  which  it  is  a  science;  the  rule,  cases  in 
which  it  is  an  art.  If,  for  example,  a  physician 
certifies  that  a  man  is  insane  without  having  made 
an  examination,  his  negligence  is  of  fact  and  not  all 
of  science.  But  a  medical  man  is  not  bound  to 
form  a  right  judgment  (as  to  sanity)  so  as  to  be 
liable  to  an  action  if  he  does  not  (Crompton,  J.,  in 
Hall  V.  Semple,  3  Fost.  and  F.,  337;  Williams  v. 
Le  Bar,  141  Pa.,  149;  21  Atl.,  525). 

^^When  the  physician  is  actually  operating,  he 
is  employing  surgery  as  an  art;  and  if,  for  exam- 
ple, he  uses  an  old  rusty  saw  (Young  v.  Fuller- 
ton,  reported  in  McClelland  on  Civil  Malpractice, 
p.  253),  or  if  he  operate  on  the  wrong  arm  (Sul- 
livan V.  McGraw,  118  Mich.,  39;  76  N.  W.,  149), 
or  sew  up  a  sponge  in  an  abdomen  he  has  opened 
(Gillette  v.  Tucker,  67  Ohio  St.,  106;  93  Am.  St. 
Bep.,  639 ;  65  N.  E.,  865),  his  wrong  concerns  phys- 


68  The  Doctor  ix  Court 

ical  facts,  and  has  fairly  been  held  to  be  governed 
by  ordinary  principles  of  negligence.  Where,  how- 
ever, dne  diligence  and  skill  have  been  employed  in 
ascertaining  the  essential  preliminary  information 
for  an  opinion  whether  a  surgical  operation  should 
be  performed  or  not,  the  formation  of  the  judg- 
ment in  accordance  with  appropriate  scientific 
knowledge,  in  a  case  of  reasonable  doubt,  is  within 
the  exception.  One  reasonable  justification  for  this 
exception  in  many  cases  is  the  elementary  prin- 
ciple that,  when  a  man  acts  according  to  his  best 
judgment  in  an  emergency,  but  fails  to  act  ju- 
diciously, he  is  not  chargeable  with  negligence. 
The  act  or  omission,  if  faulty,  may  be  called  a  mis- 
take, but  not  carelessness.  (See  Brown  v.  French, 
104  Pa.,  604.)  Physicians,  in  the  nature  of  things, 
are  sought  for  and  must  act  in  emergencies  and, 
if  a  surgeon  waits  too  long  before  undertaking  a 
necessary  amputation,  he  must  be  held  to  have 
known  the  probable  consequences  of  such  delay, 
and  may  be  held  liable  for  the  resulting  damage 
(Du  Bois  V.  Decker,  130  N.  Y.,  325;  14  L.  E.  A., 
429;  27  Am.  St.  Eep.,  529;  29  N.  E.,  313;  Martin 
V.  Courtney,  75  Minn.,  255;  77  K  W.,  813). 

^'Physicians  and  surgeons,"  still  following 
Judge  Jaggard's  words,  ''deal  with  progressive, 
inductive  science.  On  two  historic  occasions  the 
greatest  surgeons  in  our  country  met  in  conference 
to  decide  whether  or  not  they  should  operate  on 
the  person  of  a  President  of  the  United  States. 
Their  conclusion  was  the  final  human  judgment. 


Civil  Responsibility  69 

They  were  not  responsible  in  law,  either  hnman  or 
divine,  for  the  ultimate  decree  of  nature.  The 
same  tragedy  is  enacted  in  a  less  conspicnons  way 
every  day  in  every  part  of  the  country.  The  same 
principles  of  justice  apply.  Shall  it  be  held  that 
in  such  cases,  where  there  is  a  fundamental  differ- 
ence among  physicians  as  to  what  conclusion  their 
science  applied  to  knowable  facts  would  lead  to, 
then  what  they  with  their  knowledge,  training,  and 
experience  are  unable  to  decide,  and  what,  in  the 
nature  of  human  limitations  is  not  susceptible  of 
certain  determination,  shall  be  autocratically 
adjudged  by  twelve  men  in  a  box,  or  by  one  man 
on  the  bench,  or  by  a  larger  number  in  an  appel- 
late court,  none  of  whom  are  likely  to  have  the  fit- 
ness or  capacity  to  deal  with  more  than  the  ele- 
ments of  the  controversy?" 

The  law  relating  to  the  disposal  of  dead  bodies 
and  the  mutilation  thereof  is  a  subject  with  which 
every  practitioner  should  be  familiar.  Certain 
relatives  of  the  deceased  have  rights  and  privileges 
in  this  connection  which  cannot  be  interfered  with, 
and  any  unjustifiable  mutilation  of  the  corpse  will 
render  that  person  legally  responsible  to  the  rela- 
tives. Accordingly,  where  a  child  died  in  a  hos-f 
pital  and  an  unsanctioned  autopsy  was  performed, 
it  was  held  that  the  father  could  maintain  an  ac- 
tion against  the  doctor  who  mutilated  the  dead 
body  (Burney  v.  Children's  Hospital,  169  Mass., 
57;  see,  also,  Darcy  v.  Presbyterian  Hospital,  95 


70  The  Doctor  in"  Court 

N.  E.,  698) ;  and  where  a  husband  did  not  consent 
to  the  performance  of  an  autopsy  upon  the  body 
of  his  wife  he  recovered  damages  for  injury  to  his 
feelings  (Foley  v.  Phelps,  37  N.  Y.  Supp.,  471). 

A  curious  legal  point  has  been  brought  out  by 
this  class  of  cases ;  for  a  dead  body  is  not  regarded 
by  the  law  as  personal  property,  and  it  was  there- 
fore at  one  time  held  that,  this  being  the  fact,  no 
cause  of  action  would  lie  for  the  negligent  or  inten- 
tional mutilation  of  the  corpse  (Griffith  v.  Char- 
lotte, etc.,  R.  R.  Co.,  23  S.  C,  25).  This  was  true 
under  the  ecclesiastical  law,  as  a  body  was  deemed 
to  belong  to  the  church,  and  the  rule  that  there  can 
be  no  property  in  a  dead  body  holds  good  in  Eng- 
land (2  Bl.  Comm.,  429;  Williams  v.  Williams,  20 
Ch.  Div.,  659),  as  well  as  in  the  United  States 
(Hackett  v.  Same,  18  R.  I.,  155),  though  in  both 
countries  a  corpse  is  regarded  as  quasi-property 
and  the  courts  have  recognized  the  right  of  posses- 
sion by  the  relatives  of  the  body  together  with  the 
right  to  sue  for  wrongful  acts  against  the  body 
(Queen  v.  Fox,  2  Q.  B.,  24). 

Said  Mr.  Justice  Potter,  delivering  the  opinion 
of  the  court  in  Pierce  v.  Swan  Point  Cemetery  (10 
R.  I.,  227) :  *  ^  That  there  is  no  right  of  property  in  a 
dead  body,  using  the  word  in  its  ordinary  sense, 
may  well  be  admitted,  yet  the  burial  of  the  dead  is 
a  subject  which  interests  the  feelings  of  mankind 
to  a  much  greater  degree  than  many  matters  of 
actual  property.  There  is  a  duty  imposed  by  the 
universal  feelings  of  mankind  to  be  discharged  by 


Civil  Eesponsibility  71 

some  one  toward  the  dead ;  a  duty,  and  we  may  also 
say  a  right,  to  protect  from  violation;  and  a  dnty 
on  the  part  of  others  to  abstain  from  violation ;  it 
may  therefore  be  considered  as  a  sort  of  quasi- 
property,  and  it  would  be  discreditable  to  any  sys- 
tem of  law  not  to  provide  a  remedy  in  such  a  case. ' ' 

The  court  of  New  York  (Foley  v.  Phelps,  1 
App.  Div.,  551)  expresses  itself  in  this  manner: 
i  i  r£-j^^  right  is  to  the  possession  of  the  corpse  in  the 
same  condition  it  was  when  death  supervened.  It 
is  the  right  to  what  remains  when  breath  leaves  the 
body. ' ' 

It  is  not  an  uncommon  thing  for  individuals  to 
will  or  sell  their  bodies  in  the  interests  of  science. 
While  the  courts  do  not  look  with  favor  upon  per- 
sons doing  this,  they  see  the  necessity  for  students 
and  members  of  the  profession  having  bodies  to 
dissect,  and  provision  has  been  made  therefor  in 
many  States  by  the  passage  of  so-called  anatomy 
acts.  Most  of  these  enactments  are  of  compara- 
tively recent  origin,  it  not  being  very  long  ago  that 
bodies  for  dissection  had  to  be  procured  in  a  sur- 
reptitious manner.  The  method  of  Stevenson's 
body-snatcher  was  often  resorted  to. 

In  England  a  person  has  no  right  to  dispose  of 
Ms  body,  though  in  this  country  he  has  some  au- 
thority as  to  its  disposition. 

Of  course,  where  the  dissection  is  done  by  sanc- 
tion of  law  or  with  the  consent  of  the  relatives  who 
have  a  right  to  the  body,  the  mutilation  is  justifiable 
and  the  physician  not  responsible.    Where  death  is 


72  The  Doctor  in  Couet 

sudden  or  under  suspicious  circumstances  and  the 
cause  not  ascertainable  with  any  degree  of  cer- 
tainty without  an  autopsy,  a  post-mortem  examina- 
tion for  reasons  of  public  policy  becomes  lawful, 
regardless  of  whether  or  not  the  relatives  assent, 
and  the  physician  under  such  circumstances  would 
not  be  liable  for  making  his  investigation  in  a  sci- 
entific manner. 

The  relatives  from  whom  permission  must  be 
obtained  to  perform  an  autopsy  and  the  order  in 
which  they  may  take  the  dead  body  depends  upon 
the  nearness  of  the  relationship.  The  law  recog- 
nizes the  right  of  the  surviving  husband  or  wife  as 
paramount,  then  the  children,  next  the  parents  of 
the  deceased,  and  so  on  to  the  next  of  kin  following 
the  rules  governing  the  descent  of  personalty.  The 
nearer  the  relationship,  the  stronger  the  right 
(Larson  v.  Chase,  47  Minn.,  307). 

It  has  been  stated  in  various  places  in  this  and 
preceding  chapters  that  certain  questions  arising  in 
cases  of  negligence  and  malpractice  are  matters  of 
fact  for  the  jury  to  decide,  but  such  questions  may 
be  said  to  be  mixed  questions  of  law  and  fact.  For 
it  is  incumbent  on  the  court  in  every  case  to  state 
the  law  of  the  subject-matter  in  controversy.  The 
jury  must  be  guided  by  these  instructions  in  reach- 
ing a  conclusion. 

Thus  in  a  case  in  which  the  issue  is  whether  or 
not  ordinary  care,  skill,  and  diligence  was  exer- 
cised by  the  physician,  the  court  must  tell  the  jury 


Civil  Responsibility  73 

what  constitutes  these  elements  as  the  authorities 
define  them  (Teffi  v.  Wilcox,  6  Kan.,  46).  If  the 
court  does  not  pronounce  the  law  correctly,  the  ag- 
grieved party  may  usually  secure  a  new  trial.  In 
the  words  of  Judge  Manly,  of  the  supreme  bench 
of  North  Carolina  (Woodward  v.  Hancock,  52 
N.  C,  384),  **What  amounts  to  reasonable  skill  and 
care  belongs  to  a  class  of  questions  which  are  said 
to  be  compounded  of  law  and  fact.  In  this  class 
stand  reasonable  time,  due  diligence,  legal  provoca- 
tion, probable  cause,  and  the  like.  A  division  of 
the  question  in  such  cases  between  the  court  and 
jury  is  now  considered  settled;  and,  therefore, 
where  there  is  a  state  of  facts  concerned  or  proved, 
it  becomes  the  duty  of  the  court  to  draw  the  con- 
clusion as  matter  of  law. ' ' 

The  law  gives  the  benefit  of  doubt  in  cases  of 
negligence  and  malpractice  to  the  defending  phy- 
sician, and  many  legal  presumptions  which  have 
been  spoken  of  are  raised  in  his  favor.  The  law 
will  presume,  until  contrary  proof  has  been  ad- 
duced by  the  patient,  that  care  and  skill  were  used 
by  the  physician  in  his  treatment,  and  the  burden 
of  proof  is  upon  the  plaintiff  to  show  that  the  phy- 
sician was  negligent  or  unskilful.  This  does  not 
hold  true  in  cases  where  the  acts  or  omissions  to 
act  are  of  such  a  nature  that  negligence  can  be  pre- 
sumed from  proof  of  the  results. 

Thus  in  a  case  where  a  physician  did  not  dis- 
cover a  very  severe  rupture  of  the  perineum  after 
repeated  examinations  with  the  express  purpose  of 


74  The  Doctoe  in  Court 

such  a  discovery,  his  negligence  was  held  to  be  ac- 
tionable (Lewis  V.  Dwinell,  84  Me.,  497).  Gren- 
erally,  however,  there  is  no  presumption  of  a  want 
of  knowledge,  skill,  and  care,  where  the  treatment 
is  nnsuccessful  and  results  unsatisfactory  (Doyle 
V.  Owen,  150  111.  App.,  415;  Pettigrew  v.  Lewis, 
46  Kan.,  78 ;  Bonnet  v.  Foote,  47  Colo.,  282),  unless 
the  injury  is  so  manifest  as  to  leave  no  doubt  of 
the  negligence  of  the  physician.  Under  such  cir- 
cumstances affirmative  evidence  by  the  plaintiff  is 
dispensed  with.  In  a  case  in  which  a  surgical  oper- 
ation was  performed  upon  the  patient's  eye  for 
strabismus,  prior  to  which  the  patient's  eyesight 
had  been  good,  but  afterward  was  not  so  strong,  the 
court  decided  there  could  be  no  presumption  of  mal- 
practice from  the  condition  of  the  patient's  eyes 
subsequent  to  the  operation  (Pettigrew  v.  Lewis, 
46  Kan.,  78). 

Where  a  physician  is  accused  of  negligence 
alone*  evidence  to  show  his  skill  and  competency 
is  not  admissible  in  evidence  for  the  reason  that 
such  a  question  is  not  before  the  court  for  determi- 
nation (Baker  v.  Hancock,  29  Ind.  App.,  456). 

With  regard  to  the  weight  of  the  evidence  in 
tort  cases,  within  which  class,  as  we  have  seen,  come 
civil  suits  for  negligence  and  malpractice,  the  rule 
is  different  from  that  in  criminal  matters.  In  the 
latter  it  is  necessary,  in  order  to  secure  the  convic- 
tion of  the  defendant,  to  show  beyond  a  reasonable 
doubt  or  to  a  moral  certainty  the  truth  of  the  crime 


Civil  Kesponsibility  75 

charged.  This  high  standard  does  not  apply  in 
civil  cases.  It  is  only  necessary  in  such  matters  for 
the  plaintiff  to  demonstrate  by  a  preponderance  or 
superior  weight  of  evidence  that  his  contentions 
are  true. 

Like  the  double- jeopardy  plea  in  criminal  cases, 
there  is  an  analogous  rule  in  civil  matters  that  a 
person  can  only  recover  damages  once  for  one  and 
the  same  cause  of  action;  and  this  applies  to  mal- 
practice cases  where  a  judgment  is  conclusive  for 
all  injuries  direct  or  indirect  growing  out  of  the 
unscientific  or  negligent  conduct  of  the  physician 
for  which  suit  was  brought  and  judgment  secured. 
The  question  of  how  far  an  action  for  compensation 
decided  in  favor  of  the  physician  will  act  as  a  bar  to 
a  suit  for  malpractice  based  upon  the  neglect  or 
carelessness  alleged  to  have  occurred  at  the  time  of 
the  services  for  which  the  physician  sues  for  his 
fee,  is  taken  up  in  the  chapter  on  Remuneration. 

The  decisions  in  malpractice  cases  are  by  no 
means  uniform,  and  from  those  that  have  been 
here  given  one  is  led  to  the  conclusion  that  the  way 
of  the  physician  is  not  without  its  pitfalls  and  ob- 
structions. He  *4s  liable  to  have  his  acts  mis- 
judged, his  motives  suspected,  and  the  truth  col- 
ored or  distorted,  even  where  there  are  no  dis- 
honest intentions  on  the  part  of  his  accusers" 
(Upton,  Judge,  in  Williams  v.  Poppleton,  3  Ore., 
139).    The  testimony  adduced  in  malpractice  cases 


76  The  Doctok  in  Court 

must  necessarily  be  that  of  the  family,  the  friends 
of  the  patient,  or  the  patient  himself,  and  therefore 
snch  testimony  is  generally  colored  and  biased  by 
reason  of  an  interest  and  partisanship  not  un- 
natural. The  physician  may  himself  be  the  only 
witness  for  his  own  defence. 

The  hypothetical  questions  to  the  experts  for 
the  plaintiff  must  necessarily  be  founded  on  the  un- 
reliable and  unsatisfactory  evidence  of  the  plain-, 
tiff's  prejudiced  witnesses.  The  court  of  Minne- 
sota, after  noting  these  things,  said:  '^He  is  con- 
fronted by  other  uncertainties  in  testimony  greater 
than  those  of  the  human  constitution,  however  fear- 
fully and  wonderfully  we  may  be  made  or  act,  and 
greater  than  those  of  physical  science,  however 
elusive  it  may  be.  He  is  faced  by  the  eccentricities 
of  medical  experts.  We  have  no  inclination  to 
share  in  the  prevalent  and  intemperate  denuncia- 
tion of  their  ujireliability  and  veniality.  But  if 
every  verdict  mulcting  a  reputable  physician  in 
damages  must  be  sustained  if  any  of  his  profes- 
sional brethren  can  be  induced  to  swear  that,  as- 
suming the  testimony  of  the  family  and  friends  of 
the  patient  to  be  true,  the  physician  has  made  a 
mistake  of  judgment,  or  has  been  guilty  of  unsci- 
entific practice,  then  the  profession  would  be  one 
which  ^  unmerciful  disaster  follows  fast  and  follows 
faster.'  "  (Staloch  v.  Holm,  100  Minn.,  276;  111 
K  W.,  264;  9  L.  E.  A.  (N.  S.),  712.  For  further 
authorities  upon  the  .Civil  Responsibility  of  the 


Civil  Eesponsibility  77 

Profession  see  Vol.  39,  American  Digest  (Century 
Edition),  title,  * ^ Physicians  and  Surgeons,"  §§  31- 
48;  Vol.  22,  American  and  English  Encyclopaedia 
of  Law,  pp.  798-809;  Vol.  30,  Cyclopedia  of  Law 
and  Procedure,  pp.  1574-1592.) 


CHAPTER   IV. 

EEMUNEEATION 

In  the  acropolis  moTind  in  Susa  in  ancient  Elam 
a  code  of  laws  was  nneartlied  in  1902,  which  is  the 
oldest  known  code  extant,  being  that  of  Hamurabi, 
King  of  Babylon,  who  reigned  2,250  years  before 
Christ.  Many  sections  of  this  code  relate  to  phy- 
sicians and  snrgeons,  shelving  that  those  who  fol- 
lowed the  profession  in  the  time  of  Abraham  were 
men  of  dignity  and  standing  in  the  commnnity.  It 
is  interesting  to  note  that  the  majority  of  these  pro- 
visions deal  with  the  compensation  which  the  phy- 
sician and  surgeon  was  to  receive  for  his  services. 
These  sections  of  the  code  follow : 

206.  ^  ^  If  a  man  strike  another  man  in  a  qnarrel 
and  wonnd  him  he  shall  swear:  ^I  struck  him  with- 
out intent, '  and  he  shall  be  responsible  for  the  phy- 
sician. ' ' 

215.  ^'If  a  physician  operate  on  a  man  for  a 
severe  wound  (or  make  a  severe  wound  upon  a 
man)  with  a  bronze  lancet  and  save  the  man's  life ; 
or  if  he  open  an  abscess  (in  the  eye)  of  a  man  with 
a  bronze  lancet  and  save  that  man's  eye,  he  shall 
receive  ten  shekels  of  silver  (as  his  fee)." 

78 


Eemuneeation  79 

216.  ^^  If  he  be  a  freeman,  he  shall  receive  five 
shekels  of  silver.'^ 

217.  ^'If  it  be  a  raan^s  slave,  the  owner  of  the 
slave  shall  give  two  shekels  of  silver  to  the  phy- 
sician. ' ' 

221.  ^^If  a  physician  set  a  broken  bone  for  a 
man  or  cure  his  diseased  bowels,  the  patient  shall 
give  five  shekels  of  silver  to  the  physician. ' ' 

222.  ^' If  he  be  a  freeman,  he  shall  give  three 
shekels  of  silver. ' ' 

223.  ^^ If  it  be  a  man's  slave,  the  owner  of  the 
slave  shall  give  two  shekels  of  silver  to  the  phy- 
sician." (Code  of  Hamnrabi,  King  of  Babylon, 
by  Prof.  Robert  F.  Harper.) 

Before  the  passage  of  the  Statute  of  21  and  22 
Victoria,  Chapter  90,  Section  31,  the  '^Medical 
Act"  so  called  (passed  in  1858),  a  physician  in 
England  could  not  maintain  an  action  under  the 
common  law  for  his  fees  (Peck  v.  Martin,  17  Ind., 
115;  Chorley  v.  Bolcot,  4  T.  R.,  317),  except  in 
those  cases  where  there  was  an  express  contract. 
They  were  presumed  to  work  for  an  honorary  re- 
ward and  not  for  remuneration.  The  reason  for 
this  was  because  in  early  times  a  great  many  monks 
acted  as  physicians  and  they  could  not  recover  their 
fees,  for  they  were  incapable  of  possessing  any 
property  or  bringing  an  action  in  court  (Willcock 
on  MedicalLaw,  112).  They  were,  in  the  eyes  of 
the  law,  civiliter  morhii. 

But  this  custom  did  not  prevail  among  surgeons 
who  were  allowed  to  recover  for  their  services.    In 


80  The  Doctoe  in  Coukt 

Chorley  v.  Bolcot  (4  T.  E.,  317),  wliicli  was  an  ac- 
tion for  compensation,  Lord  Chief  Justice  Kenyon 
said:  ^'I  remember  a  learned  controversy  some 
years  ago  as  to  what  description  was  intended  by 
the  Medici  at  Eome,  and  it  seemed  to  have  been 
clearly  established  by  Dr.  Mead,  that  by  those  were 
not  meant  physicians,  bnt  an  inferior  degree 
amongst  the  professors  of  that  art,  snch  as  answer 
rather  to  the  descrijDtion  of  surgeons  amongst  us; 
but  at  all  events  it  has  been  understood  in  this 
country  that  the  fees  of  a  physician  are  honorary, 
and  not  demandable  of  right ;  and  it  is  much  more 
for  the  credit  and  rank  of  that  honorable  body,  and 
perhaps  for  their  benefit  also,  that  they  should  be 
so  considered.  It  never  was  yet  heard  of  that  it 
was  necessary  to  take  a  receipt  upon  such  an  occa- 
sion; and  I  much  doubt  whether  they  themselves 
would  not  altogether  claim  such  a  right  as  would 
place  them  upon  a  less  respectable  footing  in  so- 
ciety than  that  which  they  at  present  hold. ' ' 

In  the  United  States  this  rule  that  the  render- 
ing of  services  when  requested  raises  no  implied 
promise  to  pay  therefor  has  never  obtained  and 
physicians  have  been  allowed  to  sue  for  remunera- 
tion (Vilas  V.  Downer,  21  Vt.,  419) ;  in  fact,  the 
law  in  this  country  implies  a  promise  to  compen- 
sate when  a  physician  treats  a  patient  (Peck  v. 
Hutchinson,  88  Iowa,  320 ;  Crane  v.  Baudouine,  65 
Barb.  (N.  Y.),  261;  Green  v.Higenbotam,  3  K  J. 
L.  J.,  60).  But  there  are  nevertheless  certain  con- 
ditions or  qualifications  with  which  the  physician 


REMUlTERATIO]Sr  81 

and  surgeon  must  comply,  or  his  failure  may  be  suc- 
cessfully pleaded  in  bar  to  an  action  for  compensa- 
tion. In  many  States  statutes  have  been  passed 
expressly  prohibiting  one  who  has  not  fully  com- 
plied with  the  laws  regulating  the  practice  of  medi- 
cine and  surgery  from  recovering  his  fee  for  serv- 
ices, and  it  has  also  been  held  by  the  courts  that  an 
unauthorized  practitioner  cannot  recover  remunera- 
tion (Murray  v.  Williams,  121  Ga.,  63 ;  Orr  v.  Meek, 
111  Ind.,  40).  There  is,  however,  in  a  suit  for  com- 
pensation a  presumption  that  the  physician  is  duly 
licensed  (Chicago  v.  Wood,  24  111.  App.,  42;  Mc- 
Pherson  v.  Cheadell,  24  Wend.  (K  Y.),  15). 

In  an  action  for  compensation  the  physician 
does  not  have  to  show  that  his  treatment  cured  or 
benefited  the  patient  (Cotnam  v.  Wisdom,  83  Ark., 
601;  12  L.  E.  A.,  1089).  The  court  of  Wisconsin 
commenting  on  this  said:  ^^That  is  not  at  all  the 
test.  So  that  a  surgical  operation  be  conceived  and 
performed  with  due  skill  and  care,  the  price  to  be 
paid  therefor  does  not  depend  on  the  result.  The 
event  so  generally  lies  with  the  forces  of  nature  that 
all  intelligent  men  know  and  understand  that  the 
surgeon  is  not  responsible  therefor.  In  the  absence 
of  express  agreement,  the  surgeon  who  brings  to 
such  services  due  skill  and  care  earns  the  reason- 
able and  customary  price  therefor,  whether  the  out- 
come be  beneficial  to  the  patient  or  the  reverse" 
(Ladd  V.  Witte,  116  Wis.,  35). 

So  if  a  physician  uses  due  care,  yet  mistakes 
the  nature  of  the  complaint  from  which  the  patient 


82  The  Doctor  in  Couet 

suffers,  lie  can  notwitlistanding  recover  compensa- 
tion (Ely  V.  Wilbur,  49  N.  J.  L.,  685) ;  but,  on  the 
other  hand,  if  he  fails  to  use  ordinary  skill  he  will 
be  precluded  from  getting  anything  for  his  services 
(Logan  V.  Field,  192  Mo.,  54 ;  Howell  v.  Goodrich, 
69  111.,  556),  though  it  has  been  held  that  if  a  phy- 
sician is  guilty  of  negligence  or  malpractice,  he  can, 
nevertheless,  recover  compensation  less  the  amount 
of  damage  caused  by  his  conduct  (Whitesell  v. 
Hill,  101  Iowa,  629;  37  L.  R.  A.,  830). 

Where  a  physician,  upon  undertaking  the  treat- 
ment of  a  case,  stipulated  with  his  patient  that  if 
he  did  not  cure  him  he  was  to  receive  no  pay,  it 
was  held  that  he  could  not  recover  either  for  his 
treatment  or  medicines  unless  he  could  show  the 
contract,  as  far  as  he  was  concerned,  had  been  per- 
formed according  to  its  terms  and  the  patient  cured' 
(Smith  V.  Hyde,  19  Vt.,  54). 

The  case  of  McKleroy  v.  Sewell  (73  Ga.,  657) 
holds  that  if  a  physician  is  in  such  a  state  of  alco- 
holic intoxication  as  to  prevent  proper  treatment, 
this  fact  will  be  a  good  defence  to  an  action  for 
compensation  provided  the  plaintiff  did  not  assume 
the  risk,  that  is,  know  of  the  fact  of  intoxication 
or  a  tendency  thereto  when  he  employed  the  phy- 
sician. 

From  the  excerpt  of  the  code  of  Hamurabi  given 
at  the  beginning  of  this  chapter  it  is  patent  that  the 
physician  practising  in  those  times  was  permitted 
to  charge  the  rich  man  more  for  his  services  than 
he  did  the  poor  man.    During  Henry  VT's  reign 


Eemunekation  83 

tlie  physicians  in  England  had  rnles  regarding 
compensation.  The  poor  man  was  treated  free,  and 
^^in  no  case  was  the  physician  to  charge  excessive 
fees,  but  to  stndy  to  fit  his  fee  to  the  patient's 
purse,  and  measurably  after  the  deserving, of  his 
labor. ' ' 

In  the  14th  century  a  specialist  in  the  treat- 
ment of  fistula.  Dr.  John  Ardern,  if  he  had  a 
*^ worthy  man  and  great"  for  a  patient  and  cured 
him,  charged  100  marks  ^'with  robez  and  feez  of 
an  hundred  shillyns  terme  of  lyfe,  by  year.''  He 
would  take  less  ^'of  lesse  men  without  feez." 
^' Never  in  alle  my  lyfe  toke  I  lesse  than  an  hun- 
dred shillyns  for  cure  of  that  sickness. "  It  is  said 
of  him  that  after  bargaining  with  a  patient  regard- 
ing the  fee  he  was  to  receive,  he  took  security  for 
the  payment  (Philip  Hale  in  the  Boston  Herald). 

How  much  regard  to-day  can  be  had  for  the  pa- 
tient's purse  by  the  members  of  the  medical  profes- 
sion is  a  mooted  question.  On  the  point  of 
whether  or  not  it  is  allowable  for  the  physician  to 
graduate  his  professional  charges  in  accordance 
with  the  patient's  ability  to  pay  the  decisions  are 
muddy,  some  holding  the  financial  condition  of  the 
patient  to  be  a  proper  subject  for  inquiry  in  a  suit 
by  the  physician  for  compensation  (Succession  of 
Haley,  50  La.  Ann.,  840),  while  others  hold  the 
contrary  view  (Robinson  v.  Campbell,  47  la.,  625). 
For  as  was  said  by  the  court  in  Robinson  v.  Camp- 
bell (47  Iowa,  625),  '^  There  is  no  more  reason  why 
this  charge  should  be  enhanced  on  account  of  the 


84  The  Doctok  in  Court 

ability  of  the  defendants  to  pay  than  that  the  mer- 
chant should  charge  them  more  for  a  yard  of  cloth, 
or  the  druggist  for  filling  a  prescription,  or  a  la- 
borer for  a  day  ^s  work. ' '  The  Alabama  court,  hold- 
ing this  same  view  (Morrissett  v.  Wood,  123  Ala., 
384),  said:  ^'The  cure  or  amelioration  of  disease  is 
as  important  to  a  poor  man  as  it  is  to  a  rich  one, 
and,  prima  facie,  at  least,  the  services  rendered  the 
one  are  of  the  same  value  as  the  services  rendered 
to  the  other.  ^' 

Notwithstanding  this,  it  seems  in  those  cases 
where  there  is  evidence  of  a  custom  long  established 
among  the  members  of  the  profession  that  their 
services  are  rendered  with  a  view  to  charging  their 
patients  according  to  their  circumstances  and  po- 
sition in  life,  the  courts  consider  that  the  services 
of  physicians  are  accepted  in  contemplation  of  such 
custom,  and  fees  so  graduated  may  be  recovered 
(Cotnam  v.  Wisdom,  83  Ark.,  601;  Morrissett  v. 
Wood,  123  Ala.,  384) .  So  in  proving  the  true  value 
of  his  services,  evidence  of  the  customary  and 
usual  charges  in  the  neighborhood  or  locality  in 
which  the  physician  practises  is  admissible  (Jonas 
V.  King,  81  Ala.,  285),  and  that  his  rates  were  well 
known  by  persons  in  that  locality,  including  the  de- 
fendant (Paige  V.  Morgan,  28  Vt.,  565).  Such  evi- 
dence is  admissible  on  the  physician's  behalf  to 
show  the  amount  the  defendant  impliedly  agreed 
to  pay  (Paige  v.  Morgan,  28  Vt.,  565). 

Yet  where  it  appears  that  the  custom  of  charg- 
ing the  patient  with  an  eye  to  his  financial  standing 


Remunekation  85 

is  in  vogue,  but  the  patient  receives  the  benefit  of 
the  physician's  attention  when  unconscious  from 
an  accidental  injury,  or  under  any  circumstances 
where  the  patient 's  condition  is  such  that  he  cannot 
himself  request  the  services  of  a  physician,  then  a 
promise  is  implied  by  law  that  the  person  so  at- 
tended will  pay  only  reasonable  compensation  for 
such  services  (Sceva  v.  True,  53  N.  H.,  627;  Cot- 
nam  v.  Wisdom,  83  Ark.,  601). 

Suits  for  compensation  often  grow  out  of  a  dis- 
pute over  the  amount  claimed  for  services.  Re- 
sistance may  be  offered  on  the  ground  that  the 
services  were  intended  to  be  and  were  gratuitous. 
In  a  Mississippi  case  (Hardenstein  v.  Brien,  50 
S.  R.,  979)  a  physician  sued  the  administrator  of 
the  estate  of  a  Mrs.  Harper,  deceased.  One  wit- 
ness testified  that  Mrs.  Harper  said  that  she  had 
paid  the  physician  nothing  for  services  for  about 
sixteen  or  eighteen  years  previously,  but  that  in  the 
last  illness,  running  over  many  months,  he  had  come 
to  see  her  so  often  by  day  and  night,  any  hour  in 
the  night  he  was  sent  for,  that  he  must  be  paid  for 
this ;  that  the  obligation  was  too  great  to  be  passed 
over.  Another  witness  testified  that  one  day  she 
said  to  him  that  she  wanted  to  pay  him  something 
for  his  services,  as  he  had  been  good  and  kind  to 
her,  and  said  to  him:  *^Make  out  a  bill  for  me, 
Doctor,  "to  which  he  answered :  *  ^  Oh,  no,  Mrs. 
Harper;  I  cannot  make  out  a  bill;  I  don't  want  to, 
because  you  are  the  widow  of  a  physician,  and  I 
won't  think  of  doing  such  a  thing."    Referring  to 


86  The  Doctor  in  Court 

it  again,  she  said :  *  ^  Have  you  made  out  that  bill  ? ' ' 
and  he  said :  ^ '  No ;  I  have  not  made  out  any  bill. ' ' 
Then  she  said :  ^  ^  I  want  the  thing  settled  right  now ; 
have  you  made  out  any  bill!"  To  that  he  an- 
swered :  ^ '  No ;  I  told  you  I  was  not  going  to  make 
out  any  bill,"  and  she  said:  ^'I  want  to  give  you 
something;  will  a  thousand  dollars  do!"  His  re- 
ply was :  ^^I  would  not  think  of  asking  that  much." 
Again  she  said :  ^ '  How  will  $500  do ! "  and  he  said : 
'^All  right,  I  will  take  that."  The  court  held  this 
constituted  a  distinct  contract,  supported  by  a  val- 
uable consideration,  viz.,  the  services  in  the  last 
illness,  and  that  the  physician  should  have  been 
permitted  to  recover  the  $500  on  the  testimony. 

With  regard  to  this  matter  of  gratuitous  ser- 
vices, the  court  of  North  Carolina  (Prince  v.  Mc- 
Eae,  84  N.  C,  674)  has  this  to  say:  ^^ Whether  the 
plaintiff's  services  shall  be  deemed  a  gratuity  or 
constitute  a  claim  for  compensation,  must  be  deter- 
mined by  the  common  understanding  of  both  par- 
ties. If  they  were  intended  to  be  and  were  ac- 
cepted as  a  gift  or  act  of  benevolence,  they  cannot 
at  the  election  of  the  plaintiff  create  a  legal  obliga- 
tion to  pay." 

Testimony  from  an  expert  as  to  the  value  of 
services  is  admissible  in  evidence  (McKnight  v. 
Detroit,  &c.,  E.  Co.,  135  Mich.,  307),  as  there  is  no 
presumption  of  law  with  regard  to  such  value 
(Wood  V.  Barker,  49  Mich.,  295;  13  N.  W.,  597). 
It  is  manifest  that  a  jury  would  have  difficulty  in 
ascertaining  their  value  without  evidence  from  per- 


Remuneeation  87 

sons  knowing  something  about  the  matter,  and  it 
seems  that  a  jury  has  no  right  in  a  case  where  the 
evidence  as  to  the  appropriateness  of  the  physi- 
cian's remuneration  is  not  disputed  to  reduce  it 
upon  their  unsupported  belief  that  the  treatment 
should  have  been  different  (Wood  v.  Barker,  49 
Mich.,  295 ;  13  K  W.,  597).  The  value  to  be  proved 
is  the  ordinary  and  reasonable  figure  for  services  of 
that  nature  (Styles  v.  Tyler,  64  Conn.,  432).  The 
criterion  of  worth  is  not  the  physical  benefit  the  pa- 
tient receives  (Cotnam  v.  Wisdom,  83  Ark.,  601). 
A  contract  with  a  physician  to  pay  from  $200  to 
$400  for  an  operation  was  held  to  be  valid  and  bind 
the  parties  to  the  contract  for  $200,  and  upon  proof 
of  the  value  of  the  services  to  the  full  extent  of  the 
contract — $400. 

A  great  number  of  cases  upon  this  subject  of 
compensation  involve  the  question  of  liability  of 
persons  other  than  the  patient  for  the  physician's 
services.  Each  case  must  be  judged  on  its  own 
facts  just  as  any  contract  case.  In  order  to  hold 
a  third  person  liable  for  medical  attendance  to 
another  an  express  or  implied  promise  to  pay  there- 
for must  be  shown  by  the  physician  (Crane  v. 
Baudouine,  55  K  Y.,  256).  In  other  words  in  those 
cases  where  one  is  under  no  legal  obligation  to 
pay  for  medical  services  rendered  another  person, 
the  physician  cannot  hold  him  responsible  where 
there  is  no  promise  to  pay  relied  upon  by  the  phy- 
sician (Dorion  v.  Jacobson,  113  111.  App.,  564). 
Most  of  these  cases  have  grown  out  of  a  dispute  as 


88  The  Doctor  in  Court 

to  whether  or  not  there  has  been  an  implied  em- 
ployment. The  antecedent  acts  of  the  parties  de- 
termines their  obligations.  A  certain  set  of  cir- 
cumstances will  give  rise  to  certain  liabilities  if 
unaccompanied  by  express  stipulations  explaining 
such  circumstances,  and  the  law,  if  it  establishes 
a  contract  by  implication  from  these  circumstances, 
then  proceeds  as  if  the  persons  had  contracted  by 
formal  words.  The  whole  matter  is  largely  one  of 
construction  and  interpretation  of  contracts. 

Let  us  take  a  few  illustrative  cases.  It  was  de- 
cided that  where  a  steamboat  captain  brought  a 
patient  to  a  physician's  office,  asked  the  physician 
to  treat  the  patient,  and  then  left,  that  the  physician 
could  recover  his  fee  from  the  captain  (Berry  v. 
Pusey,  80  Ky.,  166) ;  and  where  a  person  tele- 
graphed to  an  infirmary,  ^'I  have  just  learned  of 
L  's  accident.  Show  him  every  consideration  and  I 
will  pay  expenses, ' '  the  court  held  that  the  sender 
of  the  telegram  would  have  to  pay,  inasmuch  as  an 
outside  physician  had  been  secured  pursuant  to  the 
request  in  the  telegram  (White  v.  Mastin,  38  Ala., 
147). 

But  where  a  hotel  keeper  at  a  resort  telegraphed 
a  friend,  *' There  are  many  cases  of  yellow  fever 
at  the  Well,  send  out  a  physician,  without  fail,  this 
evening,"  and  the  friend  showed  the  telegram  to 
a  physician  asking  him  to  go,  which  he  did,  it  was 
held  that  this  telegram  did  not  constitute  a  promise 
to  pay  the  johysician  and  he  could  not  therefore  re- 


Eemunekation  89 

cover  for  his  services  from  the  sender  of  the  mes- 
sage (Williams  v.  Brickell,  37  Miss.,  682). 

In  a  Colorado  case  a  young  man  of  25  was  quite 
seriously  injured  while  at  a  distance  from  his  fam- 
ily. He  was  without  means  and  was  cared  for  at 
a  hospital  operated  by  the  plaintiff,  a  physician. 
The  defendant,  a  sister  of  injured,  wrote  the  phy- 
sician concerning  her  brother's  condition  and  re- 
quested that  she  be  kept  informed  just  how  he 
was  doing.  She  said :  ^  ^  And  we  will  gladly  pay  all 
expenses.  .  .  .  All  of  his  expenses  will  be  paid 
later  on  and  we  want  him  to  have  everything  to 
make  him  more  comfortable, ' '  etc.  The  court  held 
that  this  was  an  original  promise  on  the  part  of  the 
sister  to  pay  for  the  services  from  the  date  of  the 
letter  on,  and  her  authorization  of  such  services 
rendered  her  liable  (Hall  v.  Allen,  104  Pac.  Eep., 
489). 

Naturally  a  third  person  could  not  be  held  liable 
for  medical  expenses  when  acting  for  another 
merely  as  a  messenger  or  in  an  emergency  (Mad- 
den V.  Blain,  66  Ga.,  49).  The  court  of  Georgia  put 
the  stamp  of  approval  upon  this  rule  of  law  in  the 
following  words:  "When  one  summoning  a  phy- 
sician to  care  for  another,  rendered  by  sudden  ill- 
ness unable  to  act  for  himself,  and  to  whom  he 
stands  in  no  relationship  which  creates  no  obliga- 
tion to  furnish  necessary  medical  care,  and  no  ex- 
press undertaking  is  entered  into,  then  from  the 
mere  summoning  of  the  physician  and  requesting 


90  The  Doctor  in  Court 

Mm  to  care  for  the  person  who  is  ill,  the  law  does 
not  presume  an  implied  promise  by  the  one  so  act- 
ing to  pay  for  the  services  of  the  physician  sum- 
moned'' (Norton  v.  Eourke,  130  Ga.,  600;  61  S. 
E.,  478;  18  L.  R.  A.  (N.  S.),  173;  see,  also,  Jes^ 
serich  v.  Walmif,  51  Mo.  App.,  270;  Starrett  v. 
Miley,  79  111  App.,  658;  Smith  v.  Watson,  14  Yt., 
332). 

A  rule  the  reverse  of  this  would  obviously  be 
unjust.  For  as  Judge  Thompson  said  in  Messen- 
bach  V.  Southern  Cooperage  Co.  (45  Mo.  App., 
232),  ^^When  a  person  is  dangerously  wounded  and 
perhaps  unable  to  speak  for  himself,  or  suif ering  so 
much  that  he  does  not  know  how  to  do  it,  any  per- 
son will  run  to  the  nearest  surgeon  in  the  per- 
formance of  an  ordinary  office  of  humanity.  If 
it  were  the  law  that  the  person  so  going  for  the 
surgeon  thereby  undertakes  to  become  personally 
responsible  for  the  surgeon's  bill,  and  especially 
for  the  surgeon's  bill  through  the  long  subsequent 
course  of  treatment,  many  would  hesitate  to  per- 
form this  office,  and  in  the  meantime  the  sufferer 
might  die  for  the  want  of  the  necessary  immediate 
attention.  Nor  is  there  a  common  and  fair  under- 
standing that  the  person  making  the  request,  or 
ordering  it  to  be  made  in  behalf  of  the  sufferer, 
under  the  circumstances,  assumes  responsibility  for 
the  surgeon's  bill." 

A  legal  obligation  may,  however,  exist  between 
the  patient  and  some  third  person  whereby  the 


BEMUNERATIOlSr  91 

latter  becomes  responsible  for  the  medical  expenses 
of  the  former.  Thus  a  father  is  chargeable  with  the 
care,  maintenance,  and  support  of  his  minor  child 
(Rowe  V.  Raper,  23  Ind.  App.,  27),  which  includes 
necessary  medical  attendance  (Best  v.  McAnslan, 
27  R.  I.,  107),  though  in  Holmes  v.  McKim  (109 
la.,  245;  80  K  W.,  329)  it  was  said:  ^^One  is  not 
under  any  implied  obligation  to  pay  for  the  services 
of  a  physician  called  to  attend  a  minor  living  with 
his  family  and  supported  by  him,  but  not  otherwise 
related  to  him,  though  he  acquiesced  in  the  at- 
tendance and  had  on  a  former  occasion  paid  the 
same  doctor  for  attending  the  same  minor,  the  phy- 
sician knowing,  however,  the  true  relations  of  the 
defendant  and  said  child.'' 

It  has  also  been  held  that  a  man  is  not  bound 
to  pay  a  physician  for  attending  his  mother-in-law 
simply  because  he  was  present  when  the  services 
were  performed  (Madden  v.  Blain,  66  Ga.,  49).  A 
request  by  a  father  to  a  physician  to  visit  his  son 
who  was  of  age,  but  ill  at  the  father's  house,  raised 
no  implied  promise  that  the  father  would  pay  for 
such  attendance  (Boyd  v.  Sappington,  4  Watts 
(Pa.),  247). 

If  the  relationship  is  not  sufficient  in  itself  to 
establish  responsibility  of  the  third  party,  the  facts 
of  the  case  must  show  an  actual  employment  by 
the  third  person  (Keams  v.  Caldwell,  7  Ky.,  449). 
Thus  where  an  employer  merely  summoned  a  doc- 
tor to  attend  an  employee  suddenly  taken  ill  while 


92  The  Doctor  iit  Court 

in  the  line  of  his  employment,  the  employee  being 
unable  to  act  for  himself,  the  employer  would  not 
be  liable  for  the  physician's  services  if  there  was 
no  express  stipulation  between  the  employer  and 
employee  that  he  should  furnish  such  care  (Norton 
V.  Rourke,  130  Ga.,  600;  61  S,  E.,  478;  18  L.  R. 
A.  (N.  S.),  173).  Where  a  woman  wounded  and 
bleeding  rushed  into  a  man's  house  to  whom  she 
was  a  stranger  and  fell  unconscious  there,  and  the 
man  called  in  a  physician  and  told  him  to  care  for 
her,  it  was  held  that  in  the  absence  of  an  express 
promise  by  the  man  to  pay  for  the  services  of  the 
physician  he  was  not  liable  therefor,  even  though 
it  appeared  that  she  had  been  carried  to  a  room  in 
the  house. 

We  have  seen  in  the  chapter  on  the  civil  re- 
sponsibility of  the  profession  that  a  patient  can 
recover  damages  against  a  physician  only  once  for 
the  same  act  of  malpractice.  In  other  words,  where 
the  question  of  negligent  or  unskilful  conduct  of  the 
physician  has  been  raised  between  the  parties,  it 
cannot  again  be  made  the  subject  of  legal  contro- 
versy between  them.  As  has  been  observed,  mal- 
practice is  generally  a  good  defence  to  an  action  for 
compensation,  and  it  is  therefore  only  natural  that 
the  law  should  say  when  such  a  defence  is  inter- 
posed that  the  question  of  malpractice  has  been  in 
issue  and  cannot  again  be  brought  before  the  court 
to  be  decided.  So  where  a  physician  brings  suit  for 
the  value  of  his  services  and  upon  trial  the  case 


Kemunekation  9S 

is  favorably  decided  for  the  physician,  the  patient 
is  precluded  from  afterward  bringing  suit  for 
negligence  or  malpractice  occurring  at  the  time  of 
the  services  for  which  the  physician  sues.  The 
object  of  this  rule  of  law  is  to  prevent  circuity  of 
action  and  multiplicity  of  suits.  A  nice  question 
has  been  raised  in  cases  where  the  patient  in  a  suit 
for  compensation  is  defaulted  or  does  not  defend 
himself  in  court.  The  decisions  of  the  various 
States  do  not  agree  as  to  whether  a  case  won  in  this 
manner  by  the  physician  will  bar  the  patient  from 
subsequently  suing  the  physician  for  negligence  and 
malpractice. 

The  question  of  compensation  for  services  as 
an  expert  witness  in  court  has  been  a  much  talked 
of  subject.  The  disrepute  into  which  medical  ex- 
pert testimony  has  unfortunately  fallen  has  led  sev- 
eral States  to  put  on  their  statute  books  enactments 
regulating  the  amount  of  pay  an  expert  shall  re- 
ceive for  giving  testimony.  This  has  been  done 
to  prevent  the  payment  of  large  fees  to  experts, 
which  has  been  a  potent  factor  in  creating  the  im- 
pression in  the  public  mind  that  the  opinions  of 
experts  are  bought  and  sold  in  the  market  like  any 
commodity.  Of  course,  the  amount  of  compensa- 
tion of  the  common  witness  is  easily  ascertainable. 
Some  of  the  statutes  relating  to  the  expert  provide 
that  he  shall  receive  only  what  the  ordinary  wit- 
ness is  entitled  to,  while  others  make  provision  for 


94  The  Doctoe  in  Court 

extra  remuneration  in  a  reasonable  amount.  The 
question  has  been  raised  many  times  as  to  whether 
or  not  a  physician  can  be  summoned  into  court  and 
compelled  to  testify  as  an  expert  without  additional 
pay.  The  argument  has  been  advanced  that  the 
knowledge  and  experience  possessed  by  a  physician 
is  peculiarly  his  own,  and  he  cannot  therefore  be 
compelled  to  testify  as  an  expert  against  his  will^ 
but  the  trend  of  the  decisions  seems  to  be  in  the 
other  direction  and  toward  the  view  that  he  can  be 
made  to  give  his  opinion  without  special  pay  other 
than  that  given  the  ordinary  witness. 

The  law  governing  disputes  over  compensation 
is  the  same  applicable  to  all  contract  cases,  and 
a  surfeit  of  adjudicated  cases  might  be  given  to 
substantiate  and  illuminate  the  various  phases  of 
the  subject  here  touched  upon.  This,  however,  is 
unnecessary.  It  is  best  for  the  member  of  the  pro- 
fession to  refrain  from  resorting  to  the  courts  for 
their  pay,  for  a  doctor's  practice  may  be  sensibly 
hurt  by  the  employment  of  such  drastic  measures, 
especially  in  the  smaller  cities  and  towns  where  the 
good  will  of  all  is  invaluable.  If,  however,  it  is 
expedient  and  advisable  to  bring  suit,  the  medical 
man  should  first  make  sure  that  the  debtor  can 
satisfy  the  judgment  in  event  of  recovery.  This 
subject  of  compensation  causes  one  of  the  pro- 
fession to  attend  the  usage  of  Chinese  physicians 
and  speculate  on  its  delightful  possibilities.  In 
that  republic  it  is  customary  for  a  man  to  pay  his 


Eemuneeatioit  95 

physician  so  long  as  he  enjoys  good  health,  but  let 
him  become  ill  and  he  ceases  to  compensate  the 
doctor.  (Further  authorities:  Vol.  39,  American 
Digest  (Century  Edition),  title,  Physicians  and 
Surgeons,  §§  50-62;  Vol.  30,  Cyclopaedia  of  Law 
and  Procedure,  pp.  1592-1604,-  Vol.  22,  American 
and  English  Encyclopaedia  of  Law,  pp.  789-798.) 


-    CHAPTER  V 

CONFIDENTIAL     COMMUNICATIONS 

The  procedure  of  our  courts  in  civil  and  crim- 
inal cases  is  in  its  nature  litigious,  not  inquisi- 
torial :  a  controversy  rather  than  an  investigation. 
From  a  time  very  remote  from  our  own,  certain 
matters  have  by  law  been  hidden  from  the  gaze 
and  scrutiny  of  the  courts,  and  persons  called  to 
testify  cannot  be  made  to  answer  questions  relating 
to  these  sacred  matters.  This  seal  of  silence  placed 
on  the  lips  of  witnesses  is  justified  on  the  grounds 
of  public  policy.  The  interests  of  the  community 
demand  that  the  state  and  the  individual  shall  be 
hedged  with  safeguards  against  the  disclosure  and 
publication  in  court  of  confidential  communications 
between  heads  of  departments  of  the  government 
regarding  secrets  of  state,  and  of  proceedings  of 
the  judiciary.  The  same  cloak  is  thrown  around 
communications  of  a  professional  nature,  as  those 
of  an  attorney  and  his  client,  and  confidences  be- 
tween husband  and  wife  are  likewise  protected. 

This  privilege  does  not  extend  to  physicians  and 
surgeons  under  the  common  law,  and  they  could 
reveal  all  information  secured  from  their  patients 

96 


Confidential  Communications  97 

regardless  of  the  effect  of  such  disclosure  on  the 
patient ;  in  fact,  physicians  and  surgeons  were  com- 
pelled to  answer  questions  regarding  these  hidden 
matters  if  called  upon  in  court  to  do  so.  In  the 
Duchess  of  Kingston's  trial,  a  late  18th  century 
case  (20  How.  St.  Tr.,  573),  Lord  Mansfield  said  a 
surgeon  has  no  privilege,  and  ^4f  a  surgeon  was 
voluntarily  to  reveal  these  secrets,  to  be  sure^  he 
would  be  guilty  of  a  breach  of  honor  and  of  great 
indiscretion;  but  to  give  that  information  in  a 
court  of  justice,  which  by  the  law  of  the  land  he 
is  bound  to  do,  will  never  be  imputed  to  him  any 
indiscretion  whatever. ' ' 

Many  of  the  States,  however,  have  passed 
statutes  prohibiting  physicians  from  disclosing  in- 
formation received  from  their  patients  in  their 
professional  capacity,  upon  the  ground  that  such 
privilege  enables  a  patient  without  risk  of  ex- 
posure to  disclose  to  his  physician  all  information 
essential  to  a  proper  treatment  of  the  case.  With- 
out such  protection  men  would,  perhaps,  be  obliged 
to  sutfer  injuries  without  alleviation  from  the  art 
of  medicine  and  surgery.  As  in  the  case  of  an 
attorney  and  his  client,  a  knowledge  of  all  the  facts 
is  necessary  in  order  to  pursue  the  course  of  action 
best  suited  to  assist  the  patient  in  his  trouble,  and 
the  purpose  of  such  statutes  is  to  invite  this  con- 
fidence and  to  prevent  a  breach  of  that  trust. 

The  following  States  have  acted  upon  this  sup- 
posed necessity  and  have  passed  laws  giving  pro- 
fessional communications  between  physicians  and 


98  The  Doctoe  in-  Cotjet 

their  patients  immunity  from  disclosure :  Arizona, 
Arkansas,  California,  Colorado,  District  of  Colum- 
bia, Idaho,  Indiana,  Iowa,  Kansas,  Michigan, 
Minnesota,  Missouri,  Montana,  Nevada,  New  York, 
Nebraska,  North  Carolina,  North  Dakota,  Ohio, 
Oklahoma,  Oregon,  Pennsylvania,  South  Dakota, 
Utah,  Washington,  West  Virginia,  Wisconsin,  and 
Wyoming. 

Mr.  Justice  Miller,  in  speaking  of  the  New 
York  statute,  said:  ^^It  is  a  just  and  reasonable 
enactment,  introduced  to  give  protection  to  those 
who  were  in  charge  of  physicians  from  the  secrets 
disclosed  to  enable  them  to  properly  prescribe  for 
diseases  of  the  patient.  To  open  the  door  to  the 
disclosure  of  secrets  revealed  on  the  sick  bed,  or 
when  consulting  a  physician,  would  destroy  con- 
fidence between  the  physician  and  the  patient,  and, 
it  is  easy  to  see,  might  tend  very  much  to  prevent 
the  advantages  and  benefits  which  flow  from  this 
confidential  relationship"  (Edington  v.  Mutual 
Life  Ins.  Co.,  67  N.  Y.,  185). 

In  order  that  the  privilege  may  be  successfully 
claimed  in  court,  it  must  appear  that  the  relation- 
ship of  physician  and  patient  existed  at  the  time 
the  information  was  given  to  the  physician  (Nesbit 
V.  People,  19  Colo.,  441;  Clark  v.  State,  8  Kan. 
App.,  782),  though  this  relationship  may  exist  even 
in  cases  where  the  employment  of  the  physician  is 
by  some  third  party.  That  is  to  say,  the  privilege 
does  not  depend  on  compensation  (Smart  v.  Kansas 
City,  208  Mo.,  162;  144  L.  R.  A.   (N.  S.),  565; 


Confidential  Communications  99 

Colorado  Fuel  and  Iron  Co.  v.  Ciimmings,  8  Colo. 
App.,  542;  Renihan  v.  Dennin,  103  N.  Y.,  573; 
Myer  v.  Supreme  Lodge,  178  N.  Y.,  63 ;  664  L.  R. 
A.,  839).  So  it  was  held  where  one  was  being  tried 
for  murder  and  the  defence  was  insanity,  the  jail 
physician  could  not  answer  questions  based  on  a 
knowledge  of  the  accused  obtained  while  under  his 
observation  in  jail  (People  v.  Schuyler,  106  IST.  Y., 
298) .  It  is  immaterial  whether  or  not  the  patient  is 
a  charitable  patient  at  a  hospital  or  in  a  private 
house ;  the  statute  may  be  invoked  by  him  just  the 
same  ( Smart  v.  Kansas  City,  supra) .  A  partner  or 
physician  called  in  consultation  cannot  reveal  com- 
munications he  has  had  brought  to  his  notice  (Reni- 
han V.  Dennin,  103  N.  Y.,  573;  Raymond  v.  Bur- 
lington Ry.  Co.,  65  la.,  152). 

Where  a  physician  examines  a  patient  merely 
for  information,  and  there  is  no  misunderstanding 
as  to  the  purpose  of  the  examination,  then  the  in- 
formation so  acquired  is  not  held  to  be  confidential 
in  the  sense  that  it  cannot  be  revealed  by  the  doc- 
tor in  court  (Nesbit  v.  People,  19  Colo.,  441).  Thus, 
in  Clark  v.  State  (8  Kan.  App.,  782),  the  defendant 
was  charged  with  being  the  father  of  an  unborn 
illegitimate  child  of  the  complaining  witness,  who 
testified  that  she  first  had  intercourse  with  the  de- 
fendant Clark  July  15,  which  he  denied,  saying 
that  it  took  place  August  3.  He  doubted  the  chas- 
tity of  the  woman  and  the  paternity  of  the  child. 
It  was  suggested  she  be  examined  by  a  physician 
of  standing  and  if  such  inspection  showed  her 


100  The  Doctok  in  Couet 

pregnancy  to  be  of  no  greater  duration  than  four 
months,  he  would  consider  himself  the  author  of 
the  girl's  trouble  and  marry  her.  This  was  as- 
sented to.  The  examination  showed  her  pregnancy 
to  be  of  six  months'  duration.  Dr.  P.,  who  made 
the  examination,  was  a  witness  at  the  trial  but 
was  not  allowed  to  give  evidence  that  at  the  time 
of  the  examination  the  girl  made  the  statement 
to  him  that  the  first  connection  was  August  3. 
This  evidence  was  excluded  as  being  confidential 
under  the  statute. 

The  upper  court  held  otherwise,  saying,  '^Dr. 
P.  was  not  present  as  the  jDhysician  of  the  com- 
plaining witness ;  she  was  not  his  patient ;  the  ex- 
amination was  not  made  for  the  purpose  of  treating 
her  for  any  physical  or  supposed  physical  distress. 
She  agreed  and  submitted  to  the  examination  for 
the  sole  purpose  of  satisfying  the  plaintiff  in  error 
as  to  whether  he  was  the  father  of  the  child.  She 
knew  that  the  result  of  the  examination  was  to  be 
made  known  to  her  parents  and  to  the  plaintiff  in 
error,  before  she  submitted  to  it.  Under  such 
circumstances,  statements  made  by  her  to  the  phy- 
sician during  the  examination  as  to  the  time  when 
the  first  connection  took  place  cannot  be  regarded 
as  confidential."  (See,  also.  People  v.  Cole,  113 
Mich.,  83.) 

If,  however,  a  physician  after  examining  a  pa- 
tient for  information  only,  advises  or  treats  the 
person  examined,  the  relationship  of  physician  and 
patient  is  thereby  created  and  the  physician  will 


CONFIDEI^TTIAL   CoMMUKICATIONS  101 

be  precluded  from  disclosing  the  information  ob- 
tained (Weitz  V.  R.  R.  Co.,  53  Mo.  App.,  39). 

One  who  seeks  the  protection  of  the  statute 
must,  generally  speaking,  be  a  physician  or  surgeon 
or  duly  licensed  practitioner  following  a  recog- 
nized school  of  good  repute.  A  dentist  is  not  in- 
cluded in  this  definition  of  persons  who  may  claim 
the  privilege  (People  v.  De  France,  104  Mich.,  563 ; 
28  L.  R.  A.,  139). 

Many  of  the  statutes  limit  the  confidence  sought 
to  be  protected  to  information  necessary  for  the 
physician  to  prescribe  for  the  patient  or  act  in 
his  professional  capacity.  The  word  ^^ necessary" 
must  not  be  taken  in  a  restricted  sense,  so  as  to 
allow  evidence  of  statements  honestly  elicited  by 
questions  or  voluntarily  given  for  purposes  of  as- 
sisting the  physician  to  properly  treat  the  case,  even 
though  it  is  manifest  that  the  disease  or  injury 
could  have  been  diagnosticated  and  treated  without 
all  of  such  information  (Renihan  v.  Dennin,  103  N. 
Y.,  573;  Sloan  v.  N.  Y.  C.  R.  Co.,  45  N.  Y.,  125; 
In  re  will  of  Bruendl,  102  Wis.,  45).  The  same  is 
also  true  of  the  word  ^  ^  prescribe, ' '  which  must  not 
be  limited  merely  to  the  meaning  ^' write  a  pre- 
scription,'' but  must  be  taken  to  mean  remedy  or 
alleviate  the  disease  or  injury  (In  re  Will  of 
Bruendl,  102  Wis.,  45). 

The  information  considered  confidential  may  be 
acquired  by  the  physician  from  the  patient  not  only 
by  verbal  communications  between  them,  but  by 
examination  or  by  looking  at  the  patient.    It  may 


102  The  Doctor  in  Court 

come  from  statements  of  other  persons  present, 
from  audible  signs,  by  touching  the  patient,  or  by 
writing.  The  ISTew  York  Court  said  of  this  feature 
of  the  statute:  *'When  it  speaks  of  information, 
it  means  not  only  communications  received  from 
the  lips  of  the  patient,  but  such  knowledge  as  may 
be  acquired  from  the  patient  himself,  from  the 
statement  of  others  who  may  surround  him  at  the 
time,  or  from  observation  of  his  appearance  and 
symptoms.  Even  if  the  patient  could  not  speak, 
or  his  mental  powers  were  so  affected  that  he  could 
not  accurately  state  the  nature  of  his  disease,  the 
astute  medical  observer  would  readily  comprehend 
his  condition.  Information  thus  acquired  is  clearly 
within  the  scope  and  meaning  of  the  statute"  (Ed- 
ington  V.  Mutual  Life  Ins.  Co:,  67  N.  Y.,  185).  The 
presumption  is  that  such  information  was  given  for 
the  purpose  of  treating  the  patient. 

The  provisions  of  many  of  the  statutes,  that 
information  is  confidential  only  when  it  is  essential 
to  enable  the  physician  to  act  in  his  professional 
capacity,  have  provoked  a  disagreement  among  the 
courts.  Some  maintain  that  only  such  informa- 
tion as  manifestly  applies  to  the  exigencies  of  the 
case  comes  within  the  provision  of  the  enactments. 
On  the  other  hand,  there  are  courts  which  interpret 
the  statute  in  a  broader  way,  protecting  all  com- 
munications which  the  physician  receives  as  such. 
**The  legislature,"  said  the  court  of  Wisconsin 
(Boyle  V.  Northwestern  Mutual  Relief  Asso.,  95 
"Wis.,  312),  ^'has  decided  wisely  that  public  policy 


Confidential  Commukications  103 

requires  such  measure  of  restriction  upon  tlie  free- 
dom of  the  physician  to  testify  or  of  others  to 
demand  testimony.  But  as  it  rested  with  the  legis- 
lature to  discover  the  necessity  for,  and  to  effec- 
tively impose,  such  restrictions,  which  are  in  dero- 
gation of  the  common  law,  it  is  for  the  courts  only 
to  enforce  such  as  have  heen  imposed  and  not  others 
which  the  legislature  has  omitted.  The  seal  placed 
on  the  lips  of  the  physician  only  relates  to  infor- 
mation necessary  to  enahle  him  to  prescribe  for 
such  patient  as  a  physician.'  The  tendency  of  all 
courts  has  been  and  should  be  toward  liberal  con- 
struction of  these  words  to  effectuate  the  purpose 
of  the  statute." 

There  is  a  large  number  of  cases  in  the  books 
where  a  patient  who  has  met  with  an  accidental 
injury  makes  damaging  statements  to  the  physician 
as  to  the  cause  of  such  injury.  Where  such  state- 
ments are  obtained  by  the  physician  for  the  purpose 
of  forming  a  correct  opinion  as  to  the  injury  and 
thereby  being  enabled  to  efficaciously  and  safely 
treat  the  patient,  then  admissions  of  this  descrip- 
tion are,  as  we  have  seen,  regarded  as  confidential 
and  are  accordingly  protected  by  the  statute.  In 
certain  instances  the  courts  have  carried  this  doc- 
trine still  further,  holding  that  a  physician  will 
not  be  permitted  to  abuse  the  professional  relation- 
ship by  securing  statements  from  the  patient 
against  the  patient's  interest  for  subsequent  use 
against  him. 

In  a  certain  case  a  physician,  while  assisting 


104  The  Doctor  in  Coukt 

in  dressing  the  injuries  of  a  man  who  had  been 
hurt  in  a  raih^oad  accident,  engaged  him  in  con- 
versation, during  which  the  injured  person  in  reply 
to  a  question  as  to  how  the  accident  occurred, 
made  a  damaging  admission.  The  court  held  that 
the  doctor  could  not  disclose  this  information  on 
the  witness  stand,  and  thus  expressed  himself: 
* '  The  physician  had  no  business  to  interrogate  his 
patient  for  any  purpose  or  object  other  than  to 
ascertain  the  nature  and  extent  of  the  injury,  and 
to  gain  such  other  information  as  was  necessary 
to  enable  him  to  properly  treat  the  injury  and 
accomplish  the  object  for  which  he  was  called 
professionally,  and  such  communications  are  priv- 
ileged and  he  cannot  disclose  them.  If  the  phy- 
sician took  advantage  of  the  fact  of  being  called 
professionally,  and  while  there  in  that  capacity 
made  inquiries  of  the  injured  party  concerning 
matters  in  which  he  had  no  interest  or  concern 
professionally,  or  for  the  purpose  of  qualifying 
himself  as  a  witness,  he  cannot  be  permitted  to 
disclose  the  information  received"  (Penn  Co.  v. 
Marion,  123  Ind.,  419). 

It  must  be  remembered  that  the  object  of  the 
statutes  is  not  to  smother  the  truth,  and  the  courts 
therefore  deem  it  their  right  to  know  something 
of  the  attending  circumstances  under  which  the 
communication  was  made  (Edington  v.  ^tna  Life 
Ins.  Co.,  77  N.  Y.,  564).  While  the  privilege  is 
created  for  the  patient 's  benefit  alone  ( Springer  v. 
Byram,  137  Ind.,  15),  nevertheless  he  has  the  right 


COKFIDEFTIAL    COMMUNICATIONS  105 

to  waive  the  protection  offered  him  by  the  statute 
(Morris  v.  Morris,  119  Ind.,  341),  and  this  right 
does  not  rest  upon  any  statutory  provision  author- 
izmg"  him  to  do  so  (Boyle  v.  Northwestern  Mut. 
Belief  Asso.,  95  Wis.,  312). 

If  a  patient  sues  his  physician  for  negligence 
or  malpractice,  or  if  he  has  the  physician  give  evi- 
dence in  his  behalf,  it  is  patent  that  either  course 
of  action  would  constitute  a  waiver.  The  privilege 
being  a  personal  one,  it  must  be  claimed  by  the 
patient  or  his  representatives  before  evidence  of 
the  communication  which  it  is  desired  to  protect 
is  admitted  (Briesenmeister  v.  Supreme  Lodge 
Knights  of  Pythias,  81  Mich.,  525;  Heuston  v. 
Simpson,  115  Ind.,  62). 

The  beneficiary  or  assignee  of  a  beneficiary 
under  a  life  insurance  policy  on  the  patient's  life 
may  claim  the  privilege  (Briesenmeister  v.  Su- 
preme Lodge,  81  Mich.,  525). 

The  statute  does  not  prevent  a  physician  from 
testifying  that  he  prescribed  for  the  deceased,  but 
a  prescription  for  the  patient  or  the  drugs  con- 
tained therein  could  not  be  put  in  evidence  (Nel- 
son v.  Nederland  Life  Ins.  Co.,  110  la.,  600),  nor 
could  the  account  books  of  the  physician  be  ex- 
amined if  they  held  confidential  and  privileged 
knowledge  concerning  the  patient  (Mott  v.  Ice  Co., 
2  Abb.  N.  C.  143).  It  has  been  held,  however,  that 
a  physician  can  testify  to  the  number  of  visits  he 
paid  his  patient  as  family  physician  and  the  dates 
thereof  (Briesenmeister  v.  Supreme  Lodge,  supra). 


lOG  The  Doctor  in  Court 

Information  imparted  to  a  physician  with  an 
illegal  purpose  in  view,  as  the  performance  of  a 
criminal  operation,  would  not,  of  course,  come 
within  the  policy  of  the  statute.  But  in  a  breach 
of  promise  suit  where  the  defendant  called  a  phy- 
sician as  witness  and  asked  him  if  at  a  certain 
time  prior  to  the  trial  the  plaintiff  had  consulted 
him  with  regard  to  ridding  herself  of  a  child  she 
was  then  pregnant  with,  it  was  held  that  such  com- 
munication was  privileged  and  could  not  be  dis- 
closed. For,  procuring  an  abortion  may  be  lawful 
and  justified  if  necessary  to  save  the  mother's 
life  (Guptill  V.  Verback,  58  la.,  98). 

It  may  be  said  in  summing  up  that  under  most 
of  the  statutes  the  essential  elements  of  a  privileged 
or  confidential  communication  are:  (a)  The  rela- 
tionship of  physician  and  patient;  (b)  informa- 
tion acquired  during  the  existence  of  this  relation- 
ship; and  (c)  the  propriety  and  necessity  of  the 
information  so  acquired  to  enable  the  physician  to 
skilfully  treat  the  patient  professionally.  These 
statutes  being  in  derogation  of  the  common  law 
oftentimes  through  their  operation  exclude  the  best 
evidence.  It  must  not  be  supposed  that  they  are 
intended  to  prevent  the  physician  from  testifying 
to  all  communications  passing  between  himself  and 
his  patient.  The  purpose  and  object  of  all  trials 
is  to  bring  to  light  the  true  facts  of  the  case,  and 
the  scope  of  the  statutes  cannot  be  enlarged  to  in- 
clude matters  not  clearly  within  their  policy,  as  the 
ends  of  justice  would  be  thwarted  and  the  beneficial 


Confidential  Communications  107 

purpose  of  the  statutes  defeated.  It  is  upon  tMs 
question  that  the  courts  dealing  with  enactments 
not  dissimilar  from  each  other  clash. 

An  extended  examination  of  the  various  acts 
and  the  host  of  decisions  they  have  given  rise  to 
has  not  been  made  here.  If  the  physician  is  called 
upon  in  court  to  reveal  a  communication  of  a  con- 
fidential nature,  it  is  always  best  for  him  to  ask 
if  it  is  necessary  for  him  to  do  so,  as  the  relation 
of  physician  and  patient  should  always  be  regarded 
by  the  members  of  the  profession  as  one  of  trust 
and  confidence. 


"CHAPTER   VI 

THE    CKIMINAL    KESPONSIBILITY    OF    THE    PKOEESSIOK 

Thus  far  we  have  been  concerned  only  with  the 
civil  rights  and  obligations  of  physicians  and  sur- 
geons. The  state  is  neutral  in  its  attitude  toward 
many  wrongful  acts  which  are  of  a  private  char- 
acter in  the  injury  they  cause.  This  is  the  case 
with  the  civil  wrongs  which  we  have  been  consider- 
ing. Yet  where  an  injury  is  '^so  atrocious  in  its 
nature,  or  so  dangerous  in  its  example,  that,  be- 
sides the  loss  it  occasions  to  the  individual  who 
suffers  by  it,  it  affects,  in  its  immediate  operation 
or  in  its  consequences,  the  interest,  the  peace, 
the  dignity,  or  the  security  of  the  public''  (3  Wil- 
son, 4),  it  is  said  to  be  a  crime,  and  the  government 
then  steps  in  and  punishes  such  wrong  by  a  criminal 
proceeding  in  its  own  name. 

We  have  seen  that  in  civil  suits  for  damages 
the  malice  or  intent  of  the  wrongdoer  does  not 
have  to  be  proved.  The  rule  of  the  criminal  law 
is  different.  Legal  guilt  has  to  do  with  the  animus 
or  mind  of  the  wrongdoer.  To  be  guilty  of  a  crime, 
one  must  have  had  an  intent  coupled  with  a  wrong- 
ful act  and  capacity  to  commit  that  act.  The  re- 
lationship between  intent  and   capacity  is  very 

108 


Ceiminal  Eespon"sibility  109 

close,  for  a  person  by  reason  of  physical  or  men- 
tal incompetency  may  be  presumed  to  be  incapable 
of  entertaining  a  criminal  intent.  This  is  the  theory 
of  the  insanity  defence;  that  is,  one  who  is  found 
to  be  legally  insane  is  deemed  incapable  of  enter- 
taining a  criminal  intent  and  is  therefore  not  re- 
sponsible for  committing  a  crime.  The  guilty  mind 
or  criminal  purpose  may  be  implied  from  the  crim- 
inal act.  It  is  an  antique  maxim  that  ignorance  of 
the  law  excuses  no  man,  and  consequently  it  is  not 
necessary  that  the  person  committing  the  wrong- 
ful act  should  be  aware  that  it  was  forbidden.  In 
other  words,  from  the  mere  doing  of  the  prohibited 
act  the  intent  will  be  supposed. 

The  compliment  which  our  law  pays  a  man  ac- 
cused of  crime  of  presuming  him  to  be  innocent 
until  the  contrary  has  been  proved  beyond  all  rea- 
sonable doubt  is  so  well  known  as  to  hardly  bear 
repeating.  The  individual  is  likewise  protected 
from  being  compelled  to  give  incriminating  evi- 
dence, the  law  recognizing  the  unsoundness  of  such 
testimony.  In  fine,  the  law  hedges  the  individual 
with  an  elaborate  system  of  outworks  to  guard  his 
personal  liberty  and  prevent  the  possibility  of  an 
innocent  person  suffering  punishment  for  a  crime. 
Happily  the  number  of  cases  in  the  books  in  which 
physicians  and  surgeons  have  come  afoul  the  crimi- 
nal law  are  comparatively  few  in  number.  Their 
absence  is  significant.  There  are,  however,  in  all 
walks  of  life  corrupt  and  dishonest  persons,  and  it 
is  with  few  exceptions  their  cases  which  have  re- 


110  The  Doctor  in  Court 

ceived  the  attention  of  the  courts  in  criminal  pro- 
ceedings. 

Now  far  and  away  the  greater  number  of 
cases  in  which  physicians  and  surgeons  have  been 
charged  with  crime  are  jDrosecutions  for  the  per- 
formance of  criminal  abortions.  Let  ns  first  then 
consider  the  crime  of  abortion.  Abortion  may  be 
legally  defined  as  the  expulsion  of  the  foetus  by 
artificial  means  at  any  time  during  the  period  of 
gestation.  The  law  does  not  make  the  distinction 
as  in  medicine  where  an  abortion  is  generally  taken 
to  mean  the  destruction  of  the  life  of  the  foetus 
during  the  first  six  months  of  pregnancy.  The 
crime  of  abortion  must  not  be  confused  with  that 
of  infanticide,  which  is  the  killing  of  a  child  after 
it  has  been  bom. 

To  procure  the  premature  delivery  of  a  preg- 
nant woman  by  artificial  means  may  be  justifiable 
or  criminal.  If  there  are  reasonable  grounds  for 
believing  the  mother's  life  will  be  forfeited  if  an 
abortion  is  not  i^erformed,  then  there  is  legal  jus- 
tification for  such  a  course  of  action.  It  is,  how- 
ever, best  for  a  physician  to  obtain  a  concurring 
oioinion  from  another  physician  of  good  standing  to 
substantiate  his  own  belief  in  such  necessity.  Spe- 
cial provision  is  made  for  this  by  the  statutes  of 
some  States.  The  consent  of  the  patient  must,  of 
course,  be  secured  before  proceeding  with  the  oper- 
ation, or,  as  we  have  seen,  the  physician  will  be 
answerable  in  damages  (Civil  Eesponsibihty  of  the 
Profession) . 


Cbiminax.  Responsibility  111 

Under  the  old  common  law  one  wIlo  attempted 
to  procure  an  abortion  with  the  mother's  consent 
was  deemed  unindictable  for  such  act  unless  the 
mother  was  *^ quick  with  child''  at  the  time  when 
the  abortion  was  attempted  or  in  fact  accom- 
plished. Save  with  regard  to  certain  civil  rights 
the  child  was  not  considered  in  esse  or  to  have 
an  independent  existence  until  it  had  quickened 
in  its  mother's  womb  (1  Bl.  Comm.,  129). 

Blackstone  said:  ^'Life  begins,  in  contempla- 
tion of  law,  as  soon  as  an  infant  is  able  to  stir 
in  its  mother's  womb."  So  at  common  law  if  the 
mother  or  a  physician  prior  to  the  time  of  quick- 
ening attempted  to  or  actually  did  destroy  the 
life  of  the  foetus  by  the  use  of  drugs  or  by  external 
or  internal  violence,  tbey  were  only  guilty  of  a 
misdemeanor.  If,  however,  the  physician  brought 
about  premature  action  of  the  organs  through  the 
agency  of  drugs  or  instruments  or  otherwise,  with- 
out the  consent  of  the  mother  and  before  she  had 
become  quick  with  child,  the  physician  was  guilty 
of  an  assault  and  battery.  But  the  consent  of  the 
mother  would  be  no  defence  if  she  died  as  a  result 
of  such  acts. 

Said  Chief  Justice  Shaw  in  Commonwealth  v. 
Parker  (9  Mete.  (Mass.),  263) :  ^'The  use  of  vio- 
lence upon  a  woman,  with  an  intent  to  procure  a 
miscarriage,  without  her  consent,  is  an  assault 
highly  aggravated  by  such  wicked  purpose,  and 
would  be  indictable  at  common  law.  So  where, 
upon  a  similar  attempt  by  drugs  or  instruments,  the 


112  The  Doctor  in"  Court 

death  of  the  mother  ensues,  the  party  making  such 
an  attempt,  with  or  without  the  consent  of  the 
woman,  is  guilt^^  of  the  murder  of  the  mother,  on 
the  ground  that  it  is  an  act  done  without  lawful 
purpose,  dangerous  to  life,  and  that  the  consent  of 
the  woman  cannot  take  away  the  imputation  of 
mahce,  any  more  than  in  the  case  of  a  duel,  where, 
in  like  manner,  there  is  consent  of  the  parties.'^ 

Lord  Hale  speaking  more  than  two  centuries 
ago  laid  down  the  law  in  these  words :  ' '  If  a  woman 
be  with  child  and  any  gives  her  a  potion  to  de- 
stroy the  child  within  her,  and  she  takes  it  and  it 
works  so  strongly  that  it  kills  her,  this  is  murder ; 
for  it  was  not  to  cure  her  of  disease,  but  unlawfully 
to  destroy  the  child  within  her;  and  therefore  he 
who  gives  a  potion  to  this  end,  must  take  the  haz- 
ard, and  if  it  kills  the  mother  it  is  murder"  (1 
Hale  P.  C,  429).  It  is  not  necessary  that  the 
agency  employed  to  procure  an  abortion  should 
be  capable  of  accomplishing  it  (Dougherty  v.  Peo- 
ple, 1  Colorado,  514).  Consent  is  not  a  justifica- 
tion that  would  avail  one  as  a  defence  in  court 
(Commonwealth  v.  Snow,  116  Mass.,  47),  and  to 
say  that  the  act  was  prompted  by  a  desire  to  shield 
a  woman's  shame  would  not  vindicate  the  wrong- 
doer (Commonwealth  v.  Wood,  11  Gray,  85). 

The  common  law  rule  distinguishing  between  a 
woman  quick  with  child  and  one  who  is  pregnant 
but  has  not  reached  the  quickening  stage  was  also 
law  in  this  country  until  supplanted  by  statute 
(Com^monwealth  v.  Bangs,  9  Mass.,  387;  Common- 


Ceiminal  Eesponsibility  113 

wealth  V.  Parker,  9  Metcalf  (Mass.),  263;  State  v. 
Cooper,  22  N.  J.  L.,  52 ;  Mitchell  v.  Commonwealth, 
78  Ky.,  204).  Under  the  common  law  the  test  as 
to  the  time  at  which  a  woman  became  ^^qnick" 
seems  to  have  been  whether  or  not  she  herself  felt 
the  child  within  her  (Eex  v.  Phillips,  3  Camb.,  73), 
though  it  would  also  involve  a  question  of  medical 
jurisprudence  to  be  determined  by  other  evidence. 
Yet  all  this  difference  between  one  who  is  quick 
with  child  and  one  who  is  not,  has  been  generally 
done  away  with  by  statute,  it  now  being  considered 
equally  wrongful  to  procure  or  attempt  to  procure 
the  abortion  of  a  woman  whether  she  be  in  an  early 
or  advanced  stage  of  pregnancy.  This  was  ap- 
parently first  remedied  by  a  statute  passed  in  the 
reign  of  King  George  III,  which  took  cognizance 
of  the  common  law  distinction  and  made  it  a  felony 
to  cause  the  miscarriage  of  a  woman  not  quick 
with  child. 

The  Massachusetts  statute  covering  this  crime 
is  illustrative  of  the  type  of  enactment  in  force 
very  generally  throughout  the  country.  It  reads 
as  follows : 

'*  Whoever,  with  intent  to  procure  the 
miscarriage  of  a  woman,  unlawfully  admin- 
isters to  her,  or  advises  or  prescribes  for 
her,  or  causes  any  poison,  drug,  medicine  or 
other  noxious  thing  to  be  taken  by  her,  or 
with  the  like  intent,  unlawfully  uses  any  in- 
strument or  other  means  whatever,  or  with 


114  The  Doctok  in  Court 

like  intent,  aids  or  assists  therein,  shall,  if 
she  dies  in  consequence  thereof,  be  punished 
by  imprisonment  in  the  state  prison  for  not 
less  than  five  nor  more  than  twenty  years ; 
and,  if  she  does  not  die  in  consequence  there- 
of, by  imprisonment  in  the  state  prison  not 
more  than  seven  years  and  by  a  fine  of  not 
more  than  two  thousand  dollars.''  (Revised 
Laws,  Chapter  212,  Section  15.) 

In  preceding  chapters  we  have  seen  that  by  the 
employment  of  a  physician  and  his  undertaking  to 
treat  a  case  certain  duties  and  legal  obligations  are 
imposed  upon  him,  which  he  must  faithfully  dis- 
charge or  respond  in  damages  to  the  patient.  The 
physician  is  required  to  bring  to  his  employment 
reasonable  skill  and  cannot  be  negligent  in  his  at- 
tention to  or  treatment  of  the  patient.  Let  us  sup- 
pose, as  occasionally  happens,  that  the  death  of  the 
patient  ensues.  Would  a  want  of  skill  and  care  on 
the  physician's  part  render  him  criminally  re- 
sponsible ? 

Now  an  act  which  causes  the  death  of  a  human 
being  may  be  murder,  manslaughter,  or  misadven- 
ture, according  to  the  circumstances.  Where  it 
appears  the  killing  was  with  malice  aforethought, 
it  is  murder;  where  there  is  no  premeditation  or 
malice  it  is  manslaughter.  Manslaughter  may  be 
voluntary  where  the  killing  is  done  in  heat  of  blood, 
or  it  may  be  involuntary  by  negligently  performing 
a  legal  duty  or  negligently  omitting  to  discharge 


Crimiital  Eesponsibility  115 

such  an  obligation.  If  death  results  while  one  is 
committing  an  unlawful  act,  such  as  procuring  the 
miscarriage  of  a  woman,  that  also  would  be  man- 
slaughter. <s^ 

^  *  The  meaning  of  negligence,  in  the  common  use  ^ 
of  language,''  says  Mr.  Justice  Stephen  (History 
of  the  Criminal  Law,  Vol.  II,  p.  123),  *'is  very 
general  and  indefinite.  It  is  practically  synony- 
mous with  heedlessness  or  carelessness,  not  taking 
notice  of  matters  relevant  to  the  business  in  hand, 
of  which  notice  might  and  ought  to  have  been  taken. 
This  meaning  is  no  doubt  included  in  the  legal 
sense  of  the  term,  but  in  reference  to  criminal  law 
the  word  has  also  the  wider  meaning  of  omitting, 
for  whatever  reason,  to  discharge  a  legal  duty^  e.  g., 
the  omission  by  a  medical  man  to  exercise  the 
skill  which  it  is  his  duty  to  exercise. "  _ 

The  doctrine  as  laid  down  by  the  courts  of  Eng- 
land and  followed  in  that  country  seems  to  be  to 
the  effect  that  a  person  undertaking  to  concern 
himself  with  the  life  and  health  of  another  must 
suffer  the  penalty  if  he  cause  his  patient's  death 
through  a  gross  want  of  skill  and  care.  It  is  im- 
material whether  he  is  educated  or  not,  whether 
he  is  licensed  or  unlicensed,  if  death  follows  as  a 
result  of  his  gross  negligence  or  incompetency,  he 
is  guilty  of  manslaughter.  As  Judge  Park  said  in 
the  English  case  of  Rex  v.  Long  (4  C.  &  P.,  398), 
^'I  call  it  acting  wickedly  when  a  man  is  grossly 
ignorant  and  yet  affects  to  cure  people,  or  when  he 
is  grossly  inattentive  to  their  safety. ' ' 


116  The  Doctoe  in  Court 

In  another  case  where  the  defendant  was  in- 
dicted for  manslaughter,  having  administered  white 
vitriol,  thereby  causing  a  man's  death,  the  court 
said:  ^^I  am  clear  that  if  a  person  not  having  a 
medical  education,  and  in  a  place  where  medical 
education  might  be  obtained,  takes  on  himself  to 
administer  medicine  which  may  have  a  dangerous 
effect,  and  such  medicine  destroys  the  life  of  the 
patient  to  whom  it  is  administered,  it  is  man- 
slaughter. The  party  may  not  mean  to  cause 
death;  on  the  contrary  he  may  mean  to  produce 
beneficial  effects;  but  he  has  no  right  to  hazard 
medicine  of  a  dangerous  tendency  where  medical 
assistance  can  be  obtained.  If  he  does,  he  does  it 
at  his  periP'  (Nanny  Simpson's  Case,  1  Levin, 
172). 

In  Rex  V.  Williamson  (3  C.  &  P.,  635,  cited  in 
State  V.  Hardister,  38  Ark.,  605)  the  defendant 
who  acted  as  a  man-midwife  tore  away  part  of  the 
prolapsed  uterus  of  a  woman  whom  he  had  de- 
livered of  a  child,  thinking  it  to  be  a  part  of  the 
placenta.  The  woman  died  as  a  result.  Upon  the 
trial  of  the  midwife  for  murder  Lord  Ellenborough 
said  in  his  summary  to  the  jury:  ^* There  has  not 
been  a  particle  of  evidence  adduced  which  goes 
to  convict  the  prisoner  of  the  crime  of  murder ;  but 
still  it  is  for  you  to  consider  whether  the  evidence 
goes  so  far  as  to  make  out  a  case  of  manslaughter. 
To  substantiate  the  charge,  the  prisoner  must  have 
been  guilty  of  criminal  misconduct,  arising  either 
from  the  grossest  ignorance  or  the  most  criminal 


Ceimin"al  Responsibility  117 

inattention.  One  or  the  other  of  these  is  necessary 
to  make  him  gnilty  of  that  criminal  negligence  and 
misconduct,  which  is  essential  to  make  out  a  case 
of  manslaughter. ' ' 

Nevertheless,  there  was  a  tendency  at  one  time 
in  this  country  to  adopt  the  seemingly  more  humane 
doctrine  that  the  interests  of  society  are  subserved 
by  holding  a  physician  civilly  liable  in  damages  for 
the  consequences  of  his  ignorance,  without  imposing 
on  him  criminal  liability  when  he  acts  with  good 
motives  and  an  honest  intent  (State  v.  Schulz,  55 
Iowa,  628 ;  Commonwealth  v.  Thompson,  6  Mass., 
137;  Rice  v.  State,  8  Mo.,  561).  Thus  in  the  early 
Massachusetts  case  of  Commonwealth  v.  Thompson 
(6  Mass.,  137,  decided  in  1809)  the  defendant,  an 
ignorant  doctor  administering  remedies  of  his  own 
concoction,  so  persistently  gave  emetics  to  his  pa- 
tient that  he  became  exhausted,  and  from  all  ap- 
pearances the  treatment  was  the  proximate  cause 
of  the  patient 's  death.  The  court  held  that  ^  ^  if  one 
assuming  the  character  of  a  physician,  through 
negligence  administered  to  his  patient  with  an  hon- 
est intention  and  expectation  of  cure,  but  which 
causes  the  death  of  the  patient,  he  is  not  guilty 
of  felonious  homicide." 

In  Rice  v.  State  (8  Mo.,  561,  decided  in  1844) 
the  prisoner  caused  the  death  of  a  woman  by  giving 
lobelia.  His  treatment  was  for  sciatica,  but  the 
woman  was  then  in  the  eighth  month  of  pregnancy 
and  soon  after  taking  the  defendant's  treatment 
she  had  a  premature  delivery  and  died.    She  was 


118  The  Doctor  in  Court 

tlie  motlier  of  three  children,  had  always  done  well 
after  confinement,  and  prior  to  the  prisoner's  treat- 
ment had  been  in  better  health  than  for  many 
years.  The  court  said:  ^^If  a  person  assume  to  act 
as  a  physician  however  ignorant  of  medical  science, 
and  prescribe  with  an  honest  intention  of  curing  the 
patient,  but  through  ignorance  of  the  quality  of  the 
medicine  prescribed  or  the  nature  of  the  disease  or 
both,  the  patient  die  in  consequence  of  the  treat- 
ment contrary  to  the  expectation  of  the  person  pre- 
scribing, he  is  not  guilty  of  murder  or  man- 
slaughter. But  if  the  party  prescribing  have  so 
much  knowledge  of  the  fatal  tendency  of  the  pre- 
scription that  it  may  be  reasonably  presumed  that 
he  administered  the  medicine  from  an  obstinate, 
wilful  rashness  and  not  with  an  honest  intention 
and  expectation  of  effecting  a  cure,  he  is  guilty  of 
manslaughter  at  least,  though  he  might  not  have 
intended  any  bodily  harm.'' 

By  the  later  American  cases  it  appears  that  the 
courts  in  this  country  lean  toward  the  English  doc- 
trine of  holding  the  professional  or  unprofessional 
practitioner  guilty  of  manslaughter  if  by  gross 
negligence,  inattention,  or  foolhardy  presumption 
he  unintentionally  causes  the  death  of  his  patient. 
In  the  later  Massachusetts  case  of  Commonwealth 
V.  Pierce  (138  Mass.,  165)  which  criticises  the  case 
of  Commonwealth  v.  Thompson,  it  appeared  that 
the  prisoner  was  called  upon  to  attend  a  sick  woman 
confined  to  her  bed.  He  prescribed  that  her  cloth- 
ing should  be  kept  saturated  with  kerosene  oil. 


Criminaij  Responsibility  119 

This  was  done,  but  in  about  two  hours  the  de- 
fendant was  sent  for  again.  The  testimony  of  the 
husband  at  the  trial  was  that,  ^^On  his  (the  defend- 
ant's) arrival,  I  told  the  defendant  how  my  wife 
had  suffered  and  what  we  had  done;  she  said  it 
was  as  if  she  was  in  the  fire ;  he  replied  that  it  was 
doing  just  what  he  wanted,  like  a  poultice  on  a  boil, 
drawing  it  out;  that  it  was  her  only  salvation.  I 
told  him  she  would  not  bear  it,  and  asked  him  if 
he  would  try  to  persuade  her;  he  said  that  he  was 
too  tender-hearted,  that  it  was  my  wife  instead  of 
his;  I  then  talked  with  her  and  told  her  the  doc- 
tor said  it  would  not  hurt  so  much  the  next  time ; 
finally  she  said  if  he  would  stay  and  see  the  effect 
she  would  try  it,  and  I  so  reported  to  him  and  the 
flannels  were  saturated  and  replaced.  The  doc- 
tor remained  until  the  patient  fell  asleep.  She  did 
not  appear  to  suffer  so  much  as  before.'' 

This  treatment  was  kept  up  for  three  days  at 
the  direction  of  the  defendant.  The  evidence  tended 
to  show  the  effect  of  the  oil  was  to  bum  and  blister 
a  large  part  of  the  surface  of  the  body,  and  that 
the  oil  had  had  this  same  effect  prior  to  this  par- 
ticular treatment,  though  it  was  shown  that  in 
certain  instances  it  had  benefited  patients.  The 
defendant  continued  to  attend  the  woman  for  ^\q 
days  and  then  other  help  was  summoned.  Two 
days  later  she  died. 

It  was  held  the  defendant  on  these  facts  could 
be  found  guilty  of  manslaughter,  because  in  order 
to  constitute  the  crime  of  manslaughter  where  there 


120  The  Doctor  in  Court 

is  no  intent,  it  is  not  essential  that  the  killing  should 
be  the  result  of  an  illegal  act,  but  it  is  enough  if 
it  appears  that  death  was  due  to  gross  negligence 
or  foolhardy  presumjation  of  the  defendant  judged 
by  the  external  criterion  of  the  ordinarily  prudent 
man  in  like  circumstances.  In  other  words,  if  the 
danger  of  an  act  is  obvious  to  the  jury,  the  failure 
or  inability  of  the  defendant  to  predict  conse- 
quences which  he  did  not  intend  or  foresee  is  im- 
material. The  court  in  this  case  put  a  limitation 
upon  the  application  of  the  rule  to  cases  in  which 
there  are  no  exceptional  circumstances  or  sudden 
emergency  calling  upon  one  to  act  as  a  physician. 
The  unsoundness  of  the  earlier  American  view  is 
manifest.  For  surely  the  law  cannot  give  recogni- 
tion to  a  privilege  to  do  acts  manifestly  endanger- 
ing human  life  on  the  ground  of  good  intentions 
alone.  (See,  also,  State  v.  Hardister  &  Brown,  38 
Ark.,  605;  State  v.  Eeynolds,  42  Kansas,  320.) 

It  must  be  kept  in  mind  that  a  mere  error  or 
mistake  of  judgment  in  treating  a  patient  resulting 
in  the  patient's  death  does  not  render  the  physician 
amenable  to  the  criminal  law,  any  more  than  he  is 
civilly  responsible  for  a  mere  mistake  of  judgment. 
This  would  be  neither  murder  nor  manslaughter, 
but  misadventure.  So  where  a  physician  examines 
the  womb  of  one  of  his  patients  and  without  malice 
or  culpable  negligence  accidentally  inflicts  a  wound 
which  causes  the  patient 's  death,  he  is  not  guilty  of 
either  murder  or  manslaughter  ( State  v.  Reynolds, 
42  Kansas,  320;  see,  also.  State  v.  Hardister  & 


Criminal  E/Esponsibility  121 

Brown,  38  Ark.,  605).  The  consent  of  the  patient 
to  the  treatment  or  operation  resulting  in  death  is 
no  defence  if  the  physician  does  not  use  due  care 
and  skill.  ( State  v.  Gile,  8  Wash.,  12 ;  for  collection 
of  cases  upon  the  subject  of  negligent  homicide  by 
a  physician  see  note  in  61  Lawyers'  Reports  An- 
notated, 287.) 

A  rather  interesting  defence  was  interposed  in 
a  murder  trial  in  New  Mexico  a  few  years  ago. 
The  principals  were  Chinese.  Yee  Dan  was  in- 
dicted for  the  murder  of  Yee  Yot  Woh,  who  was 
struck  upon  the  head  by  the  former  with  a  bar  of 
iron.  The  defence  introduced  evidence  that^fter 
Yee  Woh  had  been  taken  to  the  hospital  the  surgical 
operation  of  trepanning  was  performed  upon  his 
skull  in  such  a  manner  as  to  be  the  proximate  cause 
of  his  death.  In  explanation  of  the  unlooked-for 
result  it  was  shown  that  Yee  Yot  Woh's  skull  was 
abnormally  thin,  so  as  to  deceive  the  physician  who 
operated  and  cause  the  instrument  to  suddenly 
penetrate  the  brain.  There  was  an  autopsy  per- 
formed by  two  physicians.  One  of  these  physicians 
gave  the  following  testimony : 

*  ^  Q.  In  the  condition  that  you  found  this  oper- 
ation had  been  performed,  what,  in  your  opinion, 
would  have  been  the  efect  on  the  subject?" 

**A.  Well,  it  settled  all  his  chances  for  life.  It 
was  an  exceedingly  grave  injury.  In  addition  to 
the  one  received  by  the  blow,  it  put  beyond  all  hope 
any  recovery.'' 


122  The  Doctor  in  Court 

This  physician  "apon  cross-examination  testified 
as  follows: 

^^Q.  But  in  this  instance  you  found  the  blood- 
clot  unusually  large?" 

*'A.  Yes,  sir." 

*^Q.  And  very  compressed?" 

*^A.  Yes,  sir." 

**Q.  And  would  have  caused  death!" 

'^A.  Undoubtedly  the  hemorrhage  was  the 
proximate  cause  of  the  death ;  the  blow,  the  remote 
cause. ' ' 

^*Q.  Even  under  the  care  of  a  more  skilful 
physician,  an  injury  to  the  brain  might  probably 
cause  death!" 

**A.  Yes,  sir;  it  is  a  very  grave  injury." 

The  testimony  of  the  other  physician  was  prac- 
tically the  same,  though  he  differed  upon  the  size 
of  the  blood-clot  and  though  there  was  some  possi- 
bility of  its  being  absorbed  except  for  the  oper- 
ation. The  prisoner  was  found  guilty  of  second 
degree  murder.  The  upper  court  held  that  under 
the  circumstances  where  an  apparently  necessary 
operation  was  resorted  to  in  order  to  save  the  de- 
ceased from  the  probable  fatal  result  of  the  wound, 
that  it  must  be  clearly  established  in  order  to  save 
the  prisoner  from  responsibility  that  the  improper 
treatment  of  the  wound  was  the  sole  cause  of  the 
death  and  not  the  wound  itself  (Territory  v.  Yee 
Dan,  7  New  Mexico,  439). 

The  necessity  for  one  charged  with  the  com- 


Cbiminal  Responsibility  123 

mission  of  a  crime  to  disclose  all  facts  to  Ms  legal 
advisers  was  most  forcibly  brought  out  in  tbe 
famous  case  of  Professor  Webster  of  the  Harvard 
Medical  School,  who  was  convicted  of  the  murder 
of  Dr.  Parkman.    The  evidence  was  circumstantial. 

Webster  was  a  chemistry  professor  in  the  Har- 
vard Medical  School.  It  was  proved  at  the  trial 
that  on  the  morning  of  November  23,  1849,  Dr. 
George  Parkman,  a  well  known  Boston  character, 
left  his  home  apparently  in  sound  health  and  in 
good  spirits;  that  about  nine  o'clock  the  same 
morning  Professor  Webster  had  left  word  at  Dr. 
Parkman 's  house  that  if  Dr.  Parkman  would  call 
at  the  medical  school  about  one  thirty  p.  m.,  he 
would  see  that  Dr.  Parkman  was  paid  certain  notes 
on  which  he  was  indebted  to  him;  that  Dr.  Park- 
man  was  last  seen  alive  by  witnesses  about  one- 
forty-five  p.  m.  that  day  when  he  was  going  toward 
and  about  to  enter  the  medical  school;  that  Dr. 
Parkman  never  returned  home,  and  the  next  day 
and  until  November  30,  search  was  made  in  Bos- 
ton and  vicinity  for  him,  but  in  vain.  Large  re- 
wards were  offered  for  information  leading  to  his 
whereabouts. 

In  an  assay  furnace  of  the  laboratory  of  the 
medical  school  on  November  30,  fragments  of  hu- 
man bones  were  found  and  some  false  teeth.  It 
was  proved  there  were  no  duplicate  parts  among 
the  bones  found;  that  these  remains  were  not  of 
a  dissected  body,  and  that  they  were  all  similar  to 
the  same  parts  of  Dr.  Parkman 's  body.    The  teeth 


124  The  Doctor  iit  Court 

were  identified  as  belonging  to  Dr.  Parkman  by  tlie 
dentist  who  fitted  them  two  weeks  prior  to  Ms  dis- 
appearance. There  was  also  evidence  that  Pro- 
fessor Webster  said  he  had  had  an  interview  with 
Dr.  Parkman  in  the  laboratory  about  one-thirty 
p.  m.  the  day  of  Dr.  Parkman 's  disappearance. 
The  government  furthermore  showed  that  at  this 
time  Professor  Webster  did  not  have  the  means  to 
pay  the  notes  which  were  subsequently  found  in 
his  possession.  Professor  Webster  was  tried,  con- 
victed, and  hanged  (5  Cush.  (Mass.),  295).  His 
confession  was  made  public  after  his  death.  It 
showed  that  he  killed  Dr.  Parkman  suddenly  in 
the  heat  of  blood,  without  malice  aforethought,  by 
striking  him  with  a  stick  of  wood  which  was  used 
in  some  connection  with  the  laboratory.  In  fear  he 
had  attempted  to  dispose  of  the  body. 

If  Professor  Webster  had  disclosed  all  the  facts 
to  his  lawyers  he  would  in  all  probability  have 
saved  his  own  life.  The  lawyer  who  is  not  in 
possession  of  all  the  facts  in  a  case  is  in  a  similar 
position  to  the  physician  whose  patient  conceals 
facts  concerning  his  history  or  condition:  pro- 
pitious results  for  the  client  or  patient  as  the  case 
may  be  are  made  less  easy  of  attainment.  (Further 
authorities :  Vol.  22,  American  and  English  Ency- 
clopaedia of  Law,  pp.  810-811.) 


iCHAPTEE   VII 

QUAL/IFICATIOIsrS 

A  recurrence  to  history  shows  ns  that  the  law 
has  for  hundreds  of  years  sternly  regnlated  the 
practice  of  medicine  and  surgery  (3  Henry  VIII, 
Ch.  11,  passed  1511).  Yet  under  the  civil  law  of 
Eome  and  the  English  common  law  it  was  open  to 
all  desiring  to  practise  until  the  year  1422,  when  an 
act  confined  it  to  those  who  had  studied  in  a  uni- 
versity and  held  degrees.  Hippocrates  in  his  Law 
of  Medicine,  after  bewailing  the  low  state  of  the 
art  and  the  ignorance  of  the  practitioners  of  his 
time,  says,  ^  *  Their  mistake  appears  to  me  to  arise 
principally  from  this,  that  in  the  cities  there  is 
no  punishment  connected  with  the  practice  of  medi- 
cine (and  with  it  alone)  except  disgrace,  and  that 
does  not  hurt  those  who  are  familiar  with  it.'' 

It  was  King  Henry  VIII  who  granted  letters 
patent  incorporating  and  erecting  the  College  of 
Physicians  in  London,  with  power  to  elect  a  presi- 
dent and  make  by-laws  for  the  government  of 
all  practitioners  and  examine  the  medicines  and 
prescriptions,  and  punish  malpractices  by  fines, 
amerciaments,  and  imprisonments.  King  Henry 
VIII  also  constituted  the  company  of  Surgeons  and 

125 


126  The  Doctok  ik  Coubt 

Barbers  and  prescribed  regulations  for  it,  but  in 
the  eighteenth  year  of  the  reign  of  King  George 
II  this  union  was  dissolved  and  regulations  made 
as  to  the  surgeons  of  London. 

The  basic  principle  of  medical  legislation  and 
the  reason  the  state  has  given  its  attention  to 
the  matter  is  apparent  immediately  we  think  of 
the  great  interests  with  which  the  profession  is 
charged.  It  has  given  to  its  care  the  welfare  of 
the  multitude.  Taking  the  maxim  that  ^'preven- 
tion is  better  than  cure/'  the  various  states  have 
not  been  content  with  holding  the  members  of  the 
profession  responsible  in  damages  for  negligence 
and  malpractice,  but  in  addition  to  this  remedy 
have  passed  laws,  preventive  in  their  nature,  de- 
signed to  protect  the  health  and  lives  of  the  peo- 
ple against  fraud  and  incompetency. 

The  court  of  last  resort  in  Ehode  Island  in 
speaking  of  a  statute  of  that  state  relating  to 
medical  licensure  said:  ''The  object  of  the  statute 
in  question  is  to  secure  the  safety  and  protect  the 
health  of  the  public.  It  is  based  upon  the  as- 
sumption that  to  allow  incompetent  persons  to  de- 
termine the  nature  of  the  disease,  and  to  prescribe 
remedies  therefor,  would  result  in  injury  and  loss 
of  life.  To  protect  the  public,  not  from  theories, 
but  from  acts  of  incompetent  persons,  the  legis- 
lature has  prescribed  the  qualifications  of  those 
who  may  be  entitled  to  perform  the  important 
duties  of  medical  practitioners.  The  statute  is  not 
for  the  purpose  of  compelling  persons  suffering 


UALIFICATIONS  127 

from  disease  to  resort  to  remedies,  but  is  designed 
to  secure  to  those  desiring  remedies  competent 
physicians  to  prepare  and  administer  them'' 
(State  V.  Mylod,  20  R.  L,  632). 

Mr.  Justice  Field  of  the  Supreme  Court  of  the 
United  States  says,  *^Few  professions  require 
more  careful  preparation  by  one  who  seeks  to  enter 
it  than  that  of  medicine.  It  has  to  deal  with  all 
those  subtle  and  mysterious  influences  upon  which 
health  and  life  depend,  and  requires  not  only  a 
knowledge  of  the  properties  of  the  vegetable  and 
mineral  substances,  but  the  human  body  in  all 
its  complicated  parts  and  their  relation  to  eacJi 
other,  as  well  as  their  influence  upon  the  mind. 
The  physician  must  be  able  to  detect  readily  the 
presence  of  disease,  and  prescribe  appropriate 
remedies  for  its  removal.  Every  one  may  have 
occasion  to  consult  him^  but  comparatively  few  can 
judge  of  the  qualifications  of  learning  and  skill 
which  he  possesses.  Eeliance  must  be  placed  upon 
the  assurance  given  by  his  license,  issued  by  an 
authority  competent  to  judge  in  that  respect,  that 
he  possesses  the  requisite  qualifications.  Due  con- 
sideration therefor,  for  the  protection  of  society 
may  well  induce  the  State  to  exclude  from  practice 
those  who  have  not  such  a  license,  or  are  found 
upon  examination  not  to  be  fully  qualified"  (Dent 
V.  State  of  West  Virginia,  129  IJ.  S.,  114). 

The  right  of  the  State  to  regulate  the  practice 
of  medicine  and  surgery  has  been  repeatedly  at- 
tacked on  every  conceivable  legal  ground.    A  per- 


128  The  Doctor  in  Court 

son,  however,  is  not  born  with  the  right  to  prac- 
tise any  more  than  he  is  born  with  the  right  to  vote. 
In  other  words  there  is  no  vested  right  to  practise 
the  medical  profession  free  from  supervision  by 
the  state  (Eeetz  v.  Michigan,  188  U.  S.,  505).  The 
Supreme  Court  of  Iowa  has  gone  so  far  as  to  call 
it  the  exercise  of  a  ^  *  privilege ' '  (State  v.  Ed- 
munds, 127  Iowa,  333),  yet  in  the  absence  of  any 
law  prescribing  qualifications  a  person  would  have 
the  right  to  practise  medicine. 

Among  the  many  arguments  against  such  stat- 
utes it  has  been  urged  that  laws  of  this  kind  are 
unwise,  and  in  support  of  this  contention  Herbert 
Spencer  is  cited.  It  is  worth  remarking  that  in  his 
^* Social  Statics''  Spencer  claims  there  are  no  good 
reasons  why  the  principles  of  free  trade  should 
not  be  applied  to  the  practice  of  medicine.  He 
says,  *^A11  measures  which  tend  to  put  ignorance 
upon  a  par  with  wisdom  inevitably  check  the 
growth  of  wisdom.  Acts  of  Parliament  to  save 
silly  people  from  the  evil  which  putting  faith  in 
empirics  may  entail  on  them  do  this,  and  are  there- 
fore bad.  It  is  best  to  let  the  foolish  man  suffer 
the  penalty  of  his  foolishness.  For  the  pain,  he 
must  bear  it  as  he  can ;  for  the  experience,  he  must 
treasure  it  up,  and  act  more  rationally  in  the 
future.  To  others,  as  well  as  to  himself,  will  his 
case  be  a  warning.  And  by  multiplication  of  such 
warnings  there  cannot  fail  to  be  generated  a  cau- 
tion corresponding  to  the  danger  to  be  shunned" 
(Social  Statics,  205;  see  Thompson  v.  Van  Lear, 


Qualifications  129 

77  Ark.,  506;  5  L.  R.  A.  (N.  S.),  588;  7  Am.  Cas., 
154). 

Notwithstanding  this  and  the  many  provisions 
of  the  federal  and  state  constitutions  which  these 
statutes  are  said  to  violate,  the  various  States  have 
passed  statutes  regulating  the  matter,  such  stat- 
utes being  justified  under  the  police  power  of 
the  state.  *^This  police  power  of  the  state,"  says 
Chief  Justice  Redfield  of  the  Vermont  court 
(Thorpe  v.  R.  &  B.  E.  Co.,  27  Vt,  140),  ^^extends 
to  the  protection  of  the  lives,  limbs,  health,  com- 
fort, and  quiet  of  all  persons."  In  Dent  v.  State 
of  West  Virginia  (129  U.  S.,  114)  the  Supreme 
Court  of  the  United  States  said:  ^^The  power  of 
the  state  to  provide  for  the  general  welfare  of  its 
people  authorizes  it  to  prescribe  all  such  regula- 
tions as,  in  its  judgment,  will  secure,  or  tend  to 
secure,  them  against  the  consequences  of  igno- 
rance and  incapacity  as  well  as  of  deception  and 
fraud.  As  one  means  to  this  end,  it  has  been  the 
practice  of  different  States,  from  time  immemorial, 
to  exact  in  many  pursuits  a  certain  degree  of  skill 
and  learning,  upon  which  the  community  may  con- 
fidently rely." 

This  police  power  it  must  be  understood  is  an 
inherent,  inalienable  right  of  every  State.  That 
great  piece  of  statutory  law,  the  federal  constitu- 
tion, is  a  document  of  enumerated  powers.  All 
powers  not  expressly  given  therein  by  the  States 
to  the  national  government  are  deemed  to  have 
been  kept  by  the  States;  and  therefore  it  is  re- 


130  The  Doctor  in  Couet 

served  to  tlie  several  States  to  pass  laws  protecting 
the  lives  and  health  of  the  community  against  a 
citizen  exercising  his  rights  in  a  manner  tending 
to  injure  the  community.  In  the  words  of  Chief 
Justice  Eugg  of  the  SuiDreme  Judicial  Court  of 
Massachusetts,  ^ '  The  maintenance  of  a  high  stand- 
ard of  iDrofessional  qualifications  for  physicians  is 
of  vital  concern  to  the  public  health,  and  reason- 
able regulations  to  this  end  do  not  contravene  any 
provisions  of  the  state  or  federal  constitutions'' 
(Commonwealth  v.  Porn,  196  Mass.,  326). 

The  right  or  power  of  the  state  to  make  reason- 
able provisions  for  determining  the  qualifications 
of  those  engaging  in  medical  practice,  and  punish- 
ing those  who  attempt  to  engage  therein  in  defiance 
of  such  statutory  provisions  is  no  longer  an  open 
question,  but  well  settled  law  (Dent  v.  State  of 
West  Virginia,  129  U.  S.,  114;  People  v.  Phippin, 
70  Mich.,  6;  Gosnell  v.  State,  52  Ark.,  228;  People 
V.  Hasbrouck,  11  Utah,  291;  State  v.  Wilcox,  64 
Kansas,  789;  State  v.  Edmunds,  127  Iowa,  333; 
State  V.  CaU,  121  K  C,  643;  Hawker  v.  New 
York,  170  U.  S.,  189;  Foster  v.  Police  Commis- 
sioners, 102  Cal.,  483;  see  note  in  14  Lawyers' 
Eeports  Annotated,  579). 

Hardly  a  State  has  failed  to  use  its  power  to 
regTilate  the  practice  of  medicine  and  surgery  by 
prescribing  qualifications  a  candidate  or  applicant 
must  possess  as  a  condition  precedent  to  his  secur- 
ing a  license.  There  being  no  distinction  between 
the  power  to  revoke  and  the  power  to  grant  a 


Qualifications  131 

license,  the  statutes  -asually  give  to  the  board  or 
tribunal  before  wbicb  one's  qnalifications  are  ap- 
proved or  disapproved  the  power  to  revoke  licenses 
for  cause.  In  other  words  both  revocation  and 
granting  of  licenses  are  exercise  of  the  state's 
police  power.  E evocation  is  protection,  not  pun- 
ishment. 

While  it  has  been  held  that  a  statute  which 
authorized  a  State  board  to  revoke  a  certificate  for 
dishonorable  conduct  and  making  grossly  improb- 
able statements  is  void  as  being  indefinite  and  un- 
certain (Hewitt  V.  State  Board,  148  Cal.,  590),  the 
weight  of  authority  seems  to  be  contra  to  this 
and  is  to  the  effect  that  it  would  be  well  nigh  im- 
possible for  the  legislature  to  catalogue  all  the 
acts  for  which  one's  license  might  become  forfeit 
(Macomber  v.  Board  of  Health,  28  R.  I.,  3 ;  Alton 
V.  Medical  Examiners,  13  Ariz.,  354). 

Since  the  medical  statutes  find  their  justifica- 
tion under  the  police  power  or  the  right  of  the 
state  to  frame  laws  regarding  the  public  health, 
we  find  these  practice  acts  among  the  laws  of  the 
various  States.  They  are,  then,  like  our  divorce 
laws,  by  no  means  uniform.  For  this  reason,  it 
is  impossible  to  make  here  an  extended  and  ex- 
haustive examination  of  these  statutes  and  the 
legion  of  decisions  handed  down  by  the  different 
State  courts  interpreting  them.  It  is  manifest  that 
many  such  decisions  have  application  only  to  the 
statute  of  a  particular  State  and  are  not  therefore 
of  universal  interest  or  relevancy.     So  we  must 


132  The  Doctoe  in  Court 

needs  limit  ourselves  here  to  a  consideration  of 
the  cases  decided  under  sections  of  the  statutes 
common  to  all  the  statutes.  Those  having  occasion 
to  look  into  the  qualifications  of  medical  licensure 
in  a  given  State  may  consult  the  practice  act  of 
that  State.  The  contents  of  the  different  acts  are 
familiar  to  the  profession.  (For  all  ordinary  pur- 
poses reference  may  be  had  to  the  abstract  of  these 
laws  issued  by  the  American  Medical  Association.) 
Now,  the  criminal  prosecutions  under  the  prac- 
tice acts  for  the  illegal  practice  of  medicine  and 
surgery  have  caused  many  technical  points  for 
judicial  construction  to  be  raised.  The  Supreme 
Court  of  Ehode  Island  has  this  to  say  of  the  term 
** medicine''  in  respect  of  the  subject  in  connection 
with  which  it  is  used.  ^^  Medicine,  in  the  popular 
sense,  is  a  remedial  substance.  The  practice  of 
medicine,  as  ordinarily  or  popularly  understood, 
has  relation  to  the  art  of  preventing,  curing, 
or  alleviating  disease  or  pain.  It  rests  largely  in 
the  science  of  anatomy,  physiology,  and  hygiene; 
it  requires  a  knowledge  of  disease,  its  origin,  its 
anatomical  and  physiological  features,  and  its 
causative  relations;  and  further,  it  requires  a 
knowledge  of  drugs,  their  preparation  and  action. 
Popularly  it  consists  in  the  discovery  of  the  cause 
and  nature  of  disease,  and  the  administration  of 
remedies  or  the  prescribing  of  treatment  there- 
for" (State  V.  Mylod,  20  E.  L,  632).  Words  of 
any  statute  are  taken  in  their  natural  meaning 
provided  such  words  are  of  common  use.    Subtle 


Qualifications  133 

and  forced  constmctions  are  not  tolerated  by  the 
law  unless  such  words  if  taken  in  their  natural 
meaning,  would  be  senseless. 

There  is  a  great  number  of  cases  where  un- 
licensed persons  have  rendered  services  of  a  med- 
ical or  surgical  character  and  seek  to  evade  re- 
sponsibility by  claiming  they  do  not  come  under 
the  statute.  As  to  what  constitutes  the  practice 
of  medicine  within  the  meaning  of  the  various  acts, 
it  may  be  said  thatxaany  of  the  statutes  give  defini- 
tions and  the  cases  of  those  who  claim  not  to  be 
covered  by  the  statutes  show  an  inclination  by  the 
courts  to  stretch  the  jurisdiction  of  the  statutes  to 
all  methods  of  treatment.  (The  New  York  statute 
on  this  point  reads  as  follows :  ^  ^  §  7.  The  practice 
of  medicine  is  defined  as  follows :  A  person  prac- 
tises medicine  within  the  meaning  of  this  act,  ex- 
cept as  hereinafter  stated,  who  holds  himself  out 
as  being  able  to  diagnose,  treat,  operate,  or  pre- 
scribe, for  any  human  disease,  pain,  injury,  de- 
formity, or  physical  condition,  and  who  shall  either 
offer  or  undertake,  by  any  means  or  method,  to 
diagnose,  treat,  operate,  or  prescribe  for  any  hu- 
man disease,  pain,  injury,  deformity,  or  physical 
condition. '^    L.  1907,  Ch.  34.) 

Thus  it  has  been  held  that  one  who  practises 
^^bonesetting  and  reducing  sprains,  swellings  and 
contraction  of  the  sinews  by  friction  and  fomenta- 
tion, but  no  other  branch  of  the  healing  art ' '  comes 
within  the  provisions  of  a  statute  prohibiting  one 
practising  physic  or  surgery  from  recovering  a  fee 


134  The  Doctor  in  Court 

without  first  complying  with  the  law  relating  to 
licensure  (Hewitt  v.  Charier,  16  Pick.,  353).  So 
one  who  practises  as  a  clairvoyant  has  been  con- 
sidered as  rendering  medical  services  within  the 
meaning  of  an  act  providing  for  licensing  persons 
performing  medical  services. 

Said  the  court:  ^'The  services  rendered  were 
medical  in  their  character.  True,  the  plaintiff  does 
not  call  herself  a  physician,  but  she  visits  her  sick 
patients,  examines  their  condition,  determines  the 
nature  of  the  disease,  and  prescribes  the  remedies 
deemed  by  her  appropriate.  Whether  the  plaintiff 
calls  herself  a  medical  clairvoyant,  or  a  clairvoyant 
physician,  or  a  clear-seeing  physician,  matters  lit- 
tle ;  assuredly,  such  services  as  the  plaintiff  claims 
to  have  rendered  purport  to  be  and  are  to  be 
deemed  medical' '  (Appleton,  C.  J.,  in  Bibber  v. 
Simpson,  59  Me.,  181). 

In  the  case  of  Commonwealth  v.  Pom  (196 
Mass.,  326)  the  complaint  charged  that  the  de- 
fendant '^did  practise  medicine''  and  '^held  her- 
self out  as  a  practitioner  of  medicine ' '  contrary  to 
the  statute.  It  appeared  that  she  was  unlicensed 
and  while  she  did  not  claim  to  be  a  general  prac- 
titioner of  medicine  yet  held  herself  out  as  a  mid- 
wife. She  delivered  many  women  in  childbirth 
for  a  fee,  and  it  also  appeared  that  she  carried 
with  her  when  attending  patients  the  customary 
obstetrical  instruments,  though  she  used  these  but 
rarely  and  then  only  when  a  physician  was  beyond 
call.     She  also  prescribed  for  certain  conditions 


Qualifications  135 

in  accordance  with  tlie  directions  of  six  printed 
formulas.  The  court  held  these  facts  constituted 
the  practice  of  medicine  as  intended  by  the  stat- 
ute. The  defendant  could  therefore,  it  was  held, 
be  found  guilty  of  a  violation  of  the  law. 

The  court  said  that  although  childbirth  is  not 
a  disease,  but  a  normal  function  of  women,  never- 
theless the  practice  of  medicine  does  not  appertain 
exclusively  to  disease,  and  obstetrics  as  a  matter 
of  common  knowledge  has  for  a  long  time  been 
treated  as  a  highly  important  branch  of  the  science 
of  medicine.  In  another  case  in  Massachusetts  it 
was  contended  that  a  person  could  not  be  found 
guilty  of  the  violation  of  a  statute  prohibiting  one 
from  practising  medicine  without  prescribing  or 
dealing  out  a  substance  used  as  a  remedy  for  dis- 
ease, but  the  court  did  not  take  this  view  of  the 
matter  as  it  considered  it  too  narrow. 

^^The  science  of  medicine,''  the  opinion  reads, 
'  ^  that  is,  the  science  which  relates  to  the  prevention, 
cure  or  alleviation  of  disease,  covers  a  broad  field, 
and  is  not  limited  to  that  department  of  knowledge 
which  relates  to  the  administration  of  medicinal 
substance.  It  includes  a  knowledge,  not  only  of  the 
functions  of  the  organs  of  the  human  body,  but  also 
of  the  diseases  to  which  these  organs  are  subject, 
and  of  the  laws  of  health  and  the  modes  of  living 
which  tend  to  avert  or  overcome  disease,  as  well 
as  of  specific  methods  of  treatment  that  are  most 
effective  in  promoting  cures"  (Commonwealth  v. 
Jewelle,  199  Mass.,  558). 


136  The  Doctor  in  Couet 

So  also  it  has  been  held  that  one  who  practises 
osteopathy,  which  as  a  science  or  art  includes  the 
diagnosis  and  treatment  of  disease,  comes  within 
the  pnrview  of  a  statute  making  it  illegal  to  prac- 
tise medicine  or  surgery  without  first  obtaining  a 
certificate  of  qualification  from  the  duly  authorized 
board  of  examiners  (Bragg  v.  State,  134  Ala.,  165 )» 
The  defence  in  many  prosecutions  for  practising 
osteopathy  is  that  no  drugs  nor  other  medicinal^ 
substances  were  administered  nor  applied  internal-* 
ly,  nor  was  any  form  of  surgery  resorted  to  in  thei 
treatment  of  disease.  Therefore,  it  is  argued,  an 
osteopath  does  not  come  within  certain  statutory 
provisions.  The  availability  of  such  a  defence  de- 
pends largely  upon  the  phraseology  of  the  statute 
under  which  the  prosecution  takes  place.  Thus  it 
has  been  held  that  the  term  ^' medicine'^  as  used 
in  a  statute  pertaining  to  the  regulation  of  medical 
practice  had  a  technical  meaning,  and  as  a  science 
its  followers  were  not  merely  those  who  prescribed 
drugs  or  other  remedial  agents,  but  included  prac- 
titioners of  osteopathy  who  diagnosed  and  treated 
disease  by  a  certain  method  (Bragg  v.  State,  134 
Ala.,  165). 

On  the  other  hand  it  has  been  held  that  one  who 
practises  osteopathy  is  not  within  such  a  statute, 
the  court  saying,  ^^  Medicine  is  an  experimental, 
not  an  exact  science.  All  the  law  can  do  is  to  reg- 
ulate and  safeguard  the  use  of  powerful  and  dan- 
gerous remedies,  like  the  knife  and  drugs,  but  it 
cannot  forbid  dispensing  with  them.     When  the 


Qualifications  137 

Master,  who  was  Himself  called  the  Good  Phy- 
sician, was  told  that  other  than  his  followers  were 
casting  out  devils  and  curing  diseases.  He  said: 
^Forbid  them  not'  "  (State  v.  Biggs,  133  N.  C, 
729).  What  has  been  said  of  osteopathy  is  like- 
wise true  of  Christian  Science. 

The  lack  of  uniformity  in  the  texts  of  the  stat- 
utes has  given  birth  to  decisions  diametrically  op- 
posed to  each  other  in  the  conclusions  reached,  and 
it  follows  that  many  of  these  decisions  are  only  of 
local  importance,  having  been  decided  under  pro- 
visions of  practice  acts  differing  materially  from 
the  corresponding  provisions  of  practice  acts  of 
other  States.  In  some  States  express  provision  is 
made  by  statute  for  practitioners  of  osteopathy 
and  Christian  Science.  It  should  be  noted  here 
that  generally  speaking  all  cases  of  practising  med- 
icine and  surgery  under  the  acts  mean  practising 
for  compensation. 

Despite  the  fact  that  many  of  the  statutes  ex- 
pressly prohibit  the  use  of  any  title,  word,  letter 
or  designation  intending  to  imply  or  designate  a 
person  as  a  practitioner  of  medicine  or  surgery,  yet 
it  has  been  held  that  in  the  absence  of  a  provision 
to  this  effect  one  may  lawfully  assume  the  title 
*^ doctor''  (State  v.  Mylod,  20  E.  L,  632).  In  State 
V.  Heath  (125  Iowa,  585)  Mr.  Justice  Ladd  said: 
'^It  is  doubtless  true  a  mere  public  profession  of 
an  ability  to  heal  would  not  subject  any  one  to  the 
penalties  of  the  law.  Such  profession  must  be 
made  under  such  circumstances  as  to  indicate  that 


138  The  Doctor  in  Court 

it  is  made  with  a  view  of  undertaking  to  cure  the 
afflicted/'  Where  a  person  kept  an  olBfice  over  the 
door  of  which  was  a  sign,  ' '  Dr.  Phippin,  Magnetic 
Healer/'  and  several  persons  visited  him,  receiv- 
ing treatment,  it  was  held  this  constituted  a  holding 
out  as  a  physician  in  violation  of  law  (People  v. 
Phippin,  70  Mich.,  6). 

In  another  case  where  the  evidence  showed  that 
the  defendant  held  himself  out  as  a  magnetic  healer 
styling  himself  '^Professor,"  yet  was  not  a  grad- 
uate of  a  medical  school  and  had  no  license,  but 
treated  a  patient  for  a  lame  ankle,  diagnosed  as 
rheumatism,  the  treatment  consisting  in  rubbing, 
and  holding  the  ankle,  for  which  treatment  he 
charged  one  dollar,  it  was  held  that  this  evidence 
was  sufficient  to  show  the  defendant  guilty  of  prac- 
tising medicine  (Parks  v.  State,  159  Ind.,  211). 

But  where  one  advertised  himself  as  a  famous 
eye  expert  and  extended  an  invitation  to  all  per- 
sons with  certain  defects  of  vision  to  have  glasses 
fitted,  yet  did  not  treat  or  prescribe  for  disease  or 
deformities,  it  was  held  that  even  though  his  glasses 
had  relieved  and  cured  eye  trouble,  he  did  not  pro- 
fess to  practise  medicine  and  surgery  within  the 
meaning  of  the  statute  (People  use  of  Board  of 
Health  v.  Smith,  208  111.,  31). 

In  Witty  V.  State  (173  Ind.,  404)  the  defendant 
advertised  himself  as  a  graduate  of  a  school  of 
suggestive  therapeutics.  He  was  unlicensed  and 
in  his  advertisement  stated,  ^^  Every  known  dis- 
ease cured  without  medicine  or  surgery. ' '    He  an- 


QuALinCATIOKS  139 

nonnced  himself  as  a  specialist  in  all  ehronic  dis- 
eases, mentioning  a  long  list  of  diseases  which  re- 
sponded readily  to  his  treatment.  His  treatment 
consisted  in  rubbing  the  afflicted  parts.  For  such 
treatment  he  charged  a  fee.  He  was  held  respon- 
sible for  practising  medicine  without  complying 
with  the  law. 

The  sale  of  patent  medicines  is  not  unlawful, 
Ibut  where  an  unlicensed  person  claimed  to  be  a  phy- 
sician, held  himself  out  to  the  world  as  such,  ex- 
amined a  patient  who  had  requested  his  services 
and  then  diagnosed  the  disease,  fixed  the  amount 
of  compensation  and  gave  the  patient  a  prescrip- 
tion, it  was  held  that  he  could  not  evade  the  law 
by  proving  that  the  medicine  was  a  proprietary 
remedy  prepared  and  sold  by  him  (State  v.  Van 
Doran,  109  N.  C,  864). 

It  has  also  been  decided  that  where  one  pre- 
scribed or  administered  something  which  he  claimed 
was  good  for  the  alleviation  of  pain  or  the  cure 
of  disease,  the  fact  that  what  he  so  administered 
did  not  have  the  remedial  qualities  he  claimed  for 
it,  would  be  unavailing  as  a  defence,  inasmuch  as 
the  statute  was  intended  to  protect  the  community 
from  fraud  and  pretence  (State  v.  Heffeman,  28 
E.  L,  20). 

In  Payne  v.  State  (112  Tenn.,  588)  a  person 
engaged  in  advertising  a  patent  medicine  by 
speeches  to  a  crowd  gathered  in  the  open  air  said 
in  his  harangue  that  if  a  sufferer  with  a  stiff  neck 
or  joint  or  hand,  headache,  neuralgia  or  rheuma- 


140  The  Doctor  in  Court 

tism  would  come  onto  the  platform  lie  would  guar- 
antee to  cure  such  person  in  five  minutes  with  his 
liniment.  He  would  then  treat  any  person  coming 
upon  the  stage.  To  one  person  he  said  his  medi- 
cine was  good  for  nervousness  and  stomach  trouble 
and  that  person  thereupon  bought  a  bottle.  He 
also  said  that  directions  were  on  the  bottle  and  a 
patient  could  graduate  a  dose  according  to  the 
needs  of  his  case.  He  gave  other  directions  re- 
garding diet.  On  this  evidence  he  was  found  guilty 
of  practising  medicine  contrary  to  law. 

A  very  recent  case  of  interest  in  Arkansas 
doubted  the  right  of  the  legislature  of  that  State 
to  pass  a  law  prohibiting  physicians  from  soliciting 
patients  by  paid  agents.  The  court  held  that  such 
a  statute  is  not  void,  but  justified  under  the  police 
power.  The  court  said,  inter  alia:  ^^ Counsel  for 
the  plaintiff  quotes  Oliver  Wendell  Holmes  as  say- 
ing that,  4f  the  whole  materia  medica  was  sunk 
to  the  bottom  of  the  sea,  it  would  be  all  the  better 
for  mankind  and  all  the  worse  for  the  fishes. '  We 
do  not  dispute  that  statement,  for  there  may  be 
some  truth  in  it;  and  it  is  possible  that  the  legis- 
lature had  something  of  the  kind  in  mind  when  it 
passed  this  act.  It  may  have  thought  that  people 
are  too  much  inclined  to  imagine  themselves  in  ill 
health,  too  prone  to  consult  doctors  and  take  medi- 
cine anyway,  without  being  urged  to  do  so  by  hired 
agents. 

^'If  it  is  true,  as  the  ^eminent  medical  author- 


Qualifications  141 

ity'  quoted  by  counsel  says,  ^that  out  of  twenty- 
four  serious  cases  of  disease  three  could  not  be 
cured  by  the  best  remedies,  three  others  might  be 
benefited,  and  the  rest  would  get  well  anyway.' 
If  this  be  true,  is  it  not  better  as  a  rule  to  Hhrow 
physic  to  the  dogs, '  and  let  nature  take  her  course  1 
Now,  it  is  probable  the  conscientious  physician 
would  give  that  advice  to  his  patient  in  a  case 
where  he  needed  no  medicine. 

^^But  it  is  not  likely  a  physician  would  hire  an 
agent  to  drum  up  patients  for  him,  only  to  say  to 
them :  *  Go  thy  way ;  thou  dost  not  need  a  physician. ' 
A  physician  who  has  secured  a  patient  by  means 
of  a  hired  agent  has  paid  out  a  certain  sum  to 
obtain  his  patient,  and  is  under  a  strong  tempta- 
tion to  put  him  through  a  course  of  treatment, 
whether  he  needs  it  or  not,  in  order  to  get  his 
money  back  and  make  a  profit  on  his  investment. 
And  therein  lies  a  danger  to  the  public  from  such 
practice.  When  a  physician  obtains  a  patient  in  that 
way,  he,  in  effect,  buys  them,  just  as  if  he  said  to 
the  agent,  'I  will  pay  you  a  certain  sum  for  every 
patient  you  send  me ; '  or,  ^  I  will  pay  you  a  certain 
fee  out  of  the  money  I  receive  from  each,  patient 
you  send  me.' 

*^Now,  we  do  not  think  prudent  people  would 
wish  to  submit  to  the  advice  of  a  physician  who 
had  paid  out  money  to  get  them  under  his  treat- 
ment. To  be  successful,  the  agent  would  neces- 
sarily have  to  keep  his  interest  in  the  transaction 


142  The  Doctok  in  Court 

secret  from  the  patient ;  and  it  can  be  easily  seen 
that  such  a  method  of  securing  patients  would  very 
often  result  in  imposition  and  fraud  on  the  patient, 
and  in  inducing  many  people  to  take  treatment 
who  did  not  need  it"  (Thompson  v.  Van  Lear,  77 
Ark.,  506;  5  L.  R.  A.  (N.  S.),  588). 

Resume. — The  conservation  of  the  public  health 
has  caused  the  legislatures  of  the  various  States  to 
act  upon  the  supposed  necessity  of  restricting  med- 
ical practice.  This  is  vindicated  under  the  police 
power  of  the  state.  The  individual  right  is  sub- 
ordinated to  the  public  weal.  As  long  as  the  nat- 
ure and  extent  of  the  qualifications  required  are 
appropriate  to  the  profession  and  are  attainable 
by  reasonable  study  or  application  and  are  not 
arbitrary  and  capricious,  their  stringency  or  diffi- 
culty is  immaterial.  The  provisions  and  regula- 
tions of  the  statutes  are  enforceable  in  the  usual 
mode  established  with  regard  to  kindred  matters, 
with  proceedings  adapted  to  the  nature  of  the  case, 
which  need  not  necessarily  be  court  proceedings. 
No  attempt  has  been  made  here  to  review  the  vari- 
ous grounds  upon  which  these  statutes  are  said  to 
contravene  State  and  federal  constitutions.  Nor 
have  we  like  a  chemist  in  his  laboratory  with  cru- 
cible and  test-tube,  attempted  to  find  the  constit- 
uent elements  and  make  a  critical  analysis  of  these 
statutes.  (See  Part  II  of  Medical  Law,  by  J.  W. 
Wilcock,  containing  Acts  of  Parliament;  Statutes 
Regulating    Medical    Practice,    by   Lewis    Hoch- 


Qualifications  143 

heimer,  Vol.  61,  Central  Law  Journal,  428;  Vol. 
39,  American  Digest  (Century  Edition),  title.  Phy- 
sicians and  Surgeons,  §  §  1-15 ;  Vol.  30,  Cyclopaedia 
of  Law  and  Procedure,  pp.  1547-1570;  American 
and  English  Encyclopedia  of  Law,  Vol.  22,  pp. 
780-788.) 


THE  COPYEIGHTS  OF  THIS  BOOK,  IN  ALL  ENGLISH-SPEAKING   COUNTEIES, 
ABE   OWNED   BY   KEBMAN    COMPANY,    NEW  YORK, 


TABLE  OF  CASES  CITED 


Alton  V.   Medical  Examiners,       Commonwealth  v.  Parker,  111, 

131 
Akridge  v.  Noble,  28 
Almond  v.  Nugent,  31 
Alsop  V.  Bowtrell,  20 


Baird  v.  Mor:^rd,  51 
Baker  v.  Hancock,  34,  35,  74 
Baker  v.  Wentworth,  57 
Ballon  V.  Prescott,  46 
Barbour  v.   Martin,  46 
Barnes  v.  Means,  28 
Beck  V.  German  Klinik,  41 
Becker  v.  Janinski,  33 
Berry  v.  Pusey,  88 
Best  V.  McAuslan,  91 
Bibber  v.  Simpson,  134 
Bigney  v.  Fisher,  31 
Bogle  V.  Winslow,  58 
Bonnet  v.  Foote,   28,  74 
Boyd  V.  Sappington,  91 
Boyle  V.  Northwestern  Mutual 

Ptelief  Asso.,  102 
Bragg  V.  State,  136 
Briesenmeister      v.      Supreme 

Lodge,  105 
Brown  v.  French,  68 
Bruendl,  in  re  Will  of,  101 
Burney    v.    Children's    Hospi- 
tal, 69 

/Carpenter  v.  Blake,  32,  39,  42, 

51 
Chicago  V.  Wood,  81 
•Chorley  v.  Bolcot,  49,  79,  80 
Clark  V.  State,  98,  99 
Colorado   Fuel   &  Iron   Co.   v. 

Cummings,  99 
Commonwealth   v.  Bangs,  112 
Commonwealth  v.  Jewelle,  135 


113 
Commonwealth  v.  Pierce,   55, 

118 
Commonwealth    v.    Porn,    130, 

134 

Commonwealth  v.  Snow,  112 
Commonwealth    v.    Thompson, 

117 
Commonwealth     v.     Webster, 

123,  124 
Commonwealth  v.  Wood,  112 
Cotnam  v.  Wisdom,  81,  84,  85, 

87 
Craig  V.  Chambers,  32 
Crane  v.  Baudouine,  80,  87 

Darcy  v.  Presbyterian  Hospi- 
tal, 69 
Dashiell  v.   Grifath,  46 
Deaton  v.  Lawson,  26 
De  May  v.  Eoberts,  61 
Dent    V.    State    of    West    Vir- 
ginia, 127,  129,  130 
Dickenson  v.  Fitchburg,  13 
Dorion  v.  Jacobson,  87 
Dougherty  v.  People,  112 
Doyle  V.  Owen,  74 
Du  Bois  V.  Decker,  32,  33,  35, 

52,  58,  68 
Duchess   of  Kingston's   Trial, 

97 
Dunbauld  v.  Thompson,  28 

Edington  v.  Mutual  Life  Ins. 

Co.,   98,    102,    104 
Ely  V.  Wilbur,  82 
Ewing  V.  Goode,  37,  38 


145 


Feeney  v.  Spaulding,  34,  35 
Ferguson  y.  Hubbell,  6 


146 


Table  op  Cases  Cited 


Foley  V.  Phelps,  70,  71 
Force  v.   Gregory,  27,  28,  40, 

41 
Foster   v.   Police   Commission- 
ers, 130 

Gates  V.  Fleischer,  31 
Geiselman    v,    Scott,    51 
Gillette  v.  Tucker,  28,  31,  37, 

67 
Gladwell  v.  Steggall,  32 
Goble  V.  Dillon,  47 
Gosnell  v.   State,   130 
Graham  v.  Gautier,  42 
Grainger  v.  Still,  28,  37,  41 
Gramm  v.  Boener,   30,  45,  50, 

51,   55 
Green  v.  Higenbotam,  80 
Griffith  V.  Charlotte,  etc.,  E.  E. 

Co.,  70 
Guptill  V.  Verback,  106 

Hackett  v.  Hackett,  70 
Haire  v.  Eeese,  31  ,37,  42,  50, 

51 
Hales  V.  Eaines,  28,  54 
Hall  V.  Allen,  89 
Hall  V.  Semple,  67 
Hancke   v.    Hooper,   56 
Hardenstein  v.  Brien,  85 
Hardiman  v.  Brown,  15 
Harriott  v.  Plimpton,  60 
Hawker  v.  New  York,  130 
Heath  v.  Glisan,  35 
Helland  v.  Bridenstine,  59 
Hess  V.  Lowrey,  56 
Heuston  v.  Simpson,  105 
Hewitt  V.   Charier,  134 
Hewitt  V.  State  Board,  131 
Hibbard  v.  Thompson,  50,  53 
Higgins  V.  McCabe,  33 
Hitchcock  V.  Burgett,  31,  56 
Holmes   v.   McKim,   91 
Howard  v.  Grover,  31 
Howell  V.  Goodrich,  82 
Hyrne  v.  Erwin,  56 

Jackson  v.  Burnham,  36,  38,  39 
Jacksonville  Street  E.   Co.   v. 
Chappell,  51 


Jesserich  v.  Wakuff,  90 

Jonas  V.  King,  84 
Jones   V.    Angell,    28,    50 

Kearns  v.  Caldwell,  91 
Keller  v.  Lewis,  56 
Kendall  v.  Brown,  27,  48 


Ladd  V.  Witte,  81 
Lamphier   v.   Phipos,   31 
Langdon  v.  Humphrey,  56 
Larson  v.    Chase,   72 
Lawson  v.  Conaway,  42,  52 
Leighton   v.    Sargent,    28,   33, 

51 
Lewis  V.  Dwinell,  74 
Link  V.  Sheldon,  37 
Logan  V.  Field,  82 

Macomber  v.  Board  of  Health, 

131 
Madden  v.  Plain,  89,  91 
Mallen  v.  Boynton,  35 
Martin  v.   Courtney,  41,  68 
McCallen  v.  Adams,  63 
McCandless  v.  McWha,  30,  31, 

32,  37,  42,  50 
McCracken  v.  Smathers,  28 
McKleroy  v.  Sewell,  82 
McKnight  v.  Detroit,  etc.,  E. 

E.  Co.,  86 
McMurdock  v.  Kimberlin,  28, 

35 
McNevins   v.   Lowe,   32 
McPherson    v.    Cheadell,   81 
Messenbach  v.  Southern  Coop- 

perage  Co.,  90 
Mitchell     V.     Commonwealth, 

113 
Mohr  V.   Williams,   65 
Morris  v.  Morris,  105 
Morrisett  v.  Wood,  84 
Mott  V.  Ice  Co.,  105 
Murdock  v.  Walker,  58 
Murray  v.  Williams,  81 
Musser  v.  Chase,  33 
Myer  v.  Supreme  Lodge,  99 
Myers  v.  Holborn,  56 


Table  of  Cases  Cited 


147 


Nanny  Simpson  *s  Case,  116 
Nelson  v.  Harrington,  31,  33, 

41,  53 
Nelson  v.  Nederland  Life  Ins. 

Co.,  105 
Nesbit  V.  People,  98,  99 
Newhouse  v.  Miller,  52 
Norton   v.   Eourke,   90,   92 

O'Hara  v.  Wells,  37 
Orr  V.  Meek,  81 

Paige  V.  Morgan,  84 
Parks  V.  State,  138 
Patten  v.  Wiggin,  32,  35,  38, 

39,  41 
Payne  v.  State,  139 
Peck  V.  Hutchinson,  31,  32,  39, 

80 
Peck  V.  Martin,  34,  79 
Penn  Co.  v.  Marion,  104 
People  V.  Cole,  100 
People  V.  De  France,   101 
People  V.   Hasbrouck,   130 
People  V.  Lustig,  2 
People  V.  Phippen,  130,  138 
People  V.   Schuyler,  99 
People  use  of  Board  of  Health 

V.  Smith,  138 
Pettigrew  v.  Lewis,  34,  74 
Pierce   v.   Swan   Point    Ceme- 
tery, 70 
Pike  V.  Honsinger,  27,  28,  32, 

42 
Piper  V.  Menifer,  43 
Potter  V.  Warner,  27,  65 
Pratt  V.  Davis,  62,  63,  65 
Prince  v.  McEae,  86 

Queen  v.  Fox,  70 

Eaymond    v.    Burlington    Ey. 

Co.,  99 
Eeetz  V.  Michigan,  128 
Eenihap  v.  Dennin,  99,  101 
Eex  V.  Long,  115 
Eex  V.  Phillips,  113 
Eex  V.  Williamson,  116 
Eeynolds  v.  Graves,  34 
Eice  V.  State,  117 


Eobinson  v.    Campbell,    83 
Eowe  V.  Eaper,  91 

Sanderson  v.  Holland,  57 
Sceva  V.  True,  85 
Sears  v.  Prentice,  27 
Sloan  V.  N.  Y.   C.  E.  Co.,  101 
Small  V.  Howard,  27,  29,  31 
Smart  v.   Kansas  City,  98,  99 
Smith  V.  Hyde,  82 
Smith  V.  Overby,  61 
Smith  V.  Watson,  90 
Springer   v.   Byram,   104 
Staloch  V.  Holm,  66,  76 
Starrett  v.  Miley,  90 
State  V.  Biggs,   137 
State  V.  Call,  130 
State  V.  Cooper,  113 
State  V.  Edmunds,  128,  130 
State  V.  Gile,  55,  121 
State  V.  Hardister,  116,  120 
State  V.  Heath,  137 
State  V.  Heffernan,  139 
State  V.  Mylod,  127,  132,  137 
State  V.  Eeynolds,   120 
State  V.  Schulz,  117 
State  use  of  Janney  v.  House- 
keeper,  64,  66 
State  V.  Van  Doran,  139 
State  V.  Wilcox,  130 
Stern  v.  Lanng,  35 
Styles  V.  Tyler,  87 
Succession  of  Haley's,  83 
Sullivan  v.  McGraw,  67 

Tefft  V.  Wilcox,  31,  73 
Territory  v.  Yee  Dan,  122 
Thompson   v.   Van   Lear,   128, 

129,  142 
Thorpe  v.  E.  &  B.  E.  E.  Co., 

129 
Tomer  v.  Aiken,  37 
Tompkins  v.  Pacific  Mut.  Life 

Ins.   Co.,  28 

Utley  v.  Burns,  28,  34 

Van  Skike  v.  Potter,  28 
Vilas  V.  Downer,  80 


148 


Table  of  Cases  Cited 


Weitz  V.  E.  R.  Co.,  101 
Wells  V.  Ferry-Baker   Co.,   28 
West  V.  Martin,  36,  67 
White  V.  Carroll,  41 
White  V.  Mastin,  88 
Whitesell  v.  Hill,  27,  35,  51,  82 
Williams  v.  Brickell,  89 
Williams  v.  Le  Bar,  35,  67 
Williams  v.  Poppleton,  75 


Williams  v.  Williams,  70 
Wilmot  V.  Howard,  52 
Witches  Case,  20 
Witty  V.  State,  138 
Wood  V.  Barker,  86,  87 
Wood  V.  Clapp,  28 
Woodward  v.  Hancock,  73 

Young  V.  Fullerton,  67 


GENERAL  INDEX 


Abortion,    106,   111 

distinguished  from  infanti- 
cide, 110 
Massachusetts   statute,   113, 

114 
what  constitutes,  110 
Agent  of  physician,  140,  141, 

142 
American  Medical  Association, 

132 
Anesthetic,  use  of,  58 
Ardern,  Dr.  John,  83 
Attendance    on   patient    when 

required,  45,  46 
Autopsy,   see   Corpse. 

Unsanctioned,  69,  70,  71,  72 

Black's  Law  Dictionary,  26 
Blackstone,    Sir    William,    24, 

25,  111 
Bonesetter,     as     practitioner, 

133 
Books,  use  of,  by  witness,   3, 

20 

Jampbell,  Lord  Chief  Justice, 

6 
Care,  effect   of,   on  remunera- 
tion, 81,  82 
presumption  as  to,  51 
requirements   as  to,   27,   31, 
32,  36,  73 
depending    on    compensa- 
tion,  32,  33,   60 
depending    on    disease    or 

injury,  33,  34 
depending  on  locality,  28, 

29,  30 
instructions,  41,  42 
specialists,  34,  35 


149 


Charles  V,  Emperor,   19 
Childbirth,  as  disease,  135 
Chinese  physicians,    94,   95 
Christ,    called    ''Good    Physi- 
cian," 137 
Christian   Scientist    as   practi- 
tioner,  137 
Civil      responsibility,      47      et 
seq. 
precautions  against,  65 
Clairvoyant,    as    practitioner, 

41,  134 
Coke,  Lord,  26 
College  of  Physicians,  125 
Common  Law  of  England,  23^ 

See  England. 
Compensation,  11,  12.    See  Ee- 

muneration. 
Confidential     communications^ 
96  et  seq. 
elements  of,  106 
Constitution     of     the     United 

States,  129 
Consultation  as  protection,  65 
Contracts.     See  Eemuneration. 
elements  of,  25,  26 
implied,  34 
kinds    of,    24 
of  bankrupts,  26 
of  drunkards,  26 
of  insane  persons,  26 
of    minors,   25,   26 
of  physicians  and  surgeons, 

27 
to  do  illegal  acts,  26 
Cooley,  Thomas  M.,  23,  57 
Corpse.      See    Autopsy. 

mutilation  of,  69,  70,  71,  72 
right  to,  as  property,  70,  71 
Crime^  what  constitutes,  108 


150 


General  Index 


Criminal     responsibility,     108 
et  seq. 
for  practice  without  license, 

132 
See    Abortion,    Infanticide, 
Manslaughter,       Misad- 
venture, Murder,  Negli- 
gence. 
Cross-examination,  2,  3,  4,  10, 
12,  13 
See     Evidence,     Testimony, 
Witness. 
Cure,  presumption  as  to,  37,  38 
warranty  of,  38 

Damages.     See   Civil  Eespon- 

sibility. 
on  recovery  of,  75,  92 
Dead  bodies.     See  Corpse. 
Diagnosis,  error  in,  60,  61 
Diseases,     communication     of, 

43,  44,  58,  59 
Doubt,    resolved   in    faTOT    of 

defendant,  7'3,  74 
Duty  of  the  profession,  47 
Dying  declarations,  3 

EUenborough,  Lord,  116 
England,  laws  of,   19,   22,  23, 
48,  49,  71,  79,  113,  115, 
125,  126,  142 
Evidence.     See  Expert  Testi- 
mony,  Testimony,   Wit- 
ness, 
confidential  communica- 

tions, 96  et  seq. 
expert,  1,  2,  3,  5,  6,  76,  86 
history  of,  2,  18,  19,  20 
reformation  of,  6,  7,  8,  20, 

21 
remuneration  for,  94,  95 
hearsay,  3 
medical,    1 
non-expert,   1 
of  negligence,  73,  74 
weight    of,    in    civil    cases, 
^  74,  75 
Examination  of  witness.     See 
Cross-Examination,  Wit- 
ness. 


Examination  of  witness,  cross, 
2,  3,  4,  10,  11 
direct,  2,  8 
re-direct,  2 
Experiment,   by   physician    or 

surgeon,  40 
Experiments,  40 

Field,  Mr.  Justice,  127 
Fitzherbert,  Sir  Anthony,  46 
Foster,  Judge  William  L.,  21 
Friedman,  Lee  Max,  21 

George   II,   126 

Hale,  Lord,  112 

Hale,   Philip,    83 

Hamurabi,  Code  of,  78,  79,  82 

Hand,  Learned,  19 

Harper,  Professor  Eobert  F., 
79 

Henry  VI,  82 

Henry  VIII,  125 

Hippocrates,  125 

History  of  law,  22 

Hochheimer,  Lewis,  142,  143 

Holmes,  Oliver  Wendell,  140 

Homicide.  See  Infanticide, 
Manslaughter,  Misad- 
venture, Murder,  Neg- 
ligence. 

Hypothetical  question,  13,  14, 
76 
See     Evidence,     Testimony, 
Witness. 

Infanticide.      See  Manslaugh- 
ter, Miscarriage,  Misad- 
venture, Murder, 
distinguished      from      abor- 
tion, 110 
Instructions,    duty   of  patient 
to  follow,  42,  43 
duty   of  physician   to   give, 

42,  43 
failure  to  comply  with,  50, 
51 
Instruments,      communicating 
disease,  59 


Oenekal  Iitdex 


151 


Jaggard,  Judge,  68 
Judgment,    obligation    to    use 

best,  35,  36,  37,  66,  67, 

68,  69 
Jury,  2 

province  of  13,  18,  72 

Kent,  Chancellor,  25 
Kenyon,   Lord   Chief   Justice, 
80 


Learning,  requirements  as  to, 

27,  28 
depending    on    locality,    28, 

29,  30 
depending       on       scientific 

knowledge,   31 
specialists,  34,  35 
License  to  practise,  26,  125  et 

seq. 
revocation  of,  131 
See  Practice;  see  Medicine. 

Magna  Charta,  23 

Magnetic  healer,  as  practi- 
tioner, 138 

Malpractice.  See  Civil  Ee- 
sponsibility;  see  Crim- 
inal Eesponsibility. 

Manly,  Judge,   73 

Mansfield,  Lord,  97 

Manslaughter,    114,    115,    116, 

117,  118,  119,  120 
McClelland  on  Civil  Malprac- 
tice, 54 

Mead,  Dr.,  80 
Medical  Act,  49,  79 
Medicine.     See   Patent   Medi- 
cine. 

practice    of,    132,    135,    136, 
137. 
Memory,  refreshing,  16,  17 
Midwife,   as  practitioner,    134 
Miller,  Justice,  98 
Misadventure,   114,   120 
Miscarriage.     See  Abortion. 

procuring,   113,    114.   115 
Murder,    114,    115,    116,    117, 

118,  119,  120 


Negligence,    contributory,    49 
et  seq. 
criminal,   108  et   seq. 
degrees  of,  47,  48,  49 
liability  for,  33 

of    third  persons,    55,   56, 
57 
Notes,  use  of,  by  witness,  16, 
17 

Oath  of  witness,  4,  5 
Oculist,  as  practitioner,  35 
Operations,  authorized,  63,  64, 
65 
duty  to  advise  against,  45, 

55 
presumption  as  to  necessity, 

66 
unauthorized,  62,  63,  64,  65 
Opinion,    expert,    3,    6,    20 

as  evidence,  18 
Osteopath,  as  practitioner,  136 

Park,  Judge,  115 

Patent  medicines,  139,  140 

Patient,  rights  of,  27 

regarding  deception,  61,  62 
Phraseology,    medical,    8,    9 
Physical    examination,    17,    18 
Poore,  George  V.,  16 
Practice.    See  Medicine, 
criterion  of,  40,  41 
license  to,  125  et  seq. 
mode  of,  38,  39,  40 
state   regulation   of,   127 
what  constitutes,  132  et  seq. 
Pregnancy.      See    Quick    with 

Child,  112  et  seq. 
Privileged        Communications. 
See     Confidential     Com- 
munications. 
to  physicians  and  surgeons, 
what  constitutes,  99 
depending    on    compensa- 
tion,  98 
Public  policy,  96 

Qualifications  of  physicians 
and  surgeons,  125  et 
seq. 


152 


General  Index 


Questions.         See      Evidence, 
Testimony,  Witness. 

dilemma,  15 

hypothetical,  13,  14,  76 

incriminating,    16 

leading,  15 

of  fact,  72,  73 

of  law,  72,  73 
Quick  with  Child.     See  Preg- 
nancy. 

distinguished      from      preg- 
nant, 113 


Eecords.     See  Memory, 
form  of,   17,   18 
importance  of  keeping,  16 

Bedfield,  Chief  Justice,  129 
Bemuneration,    78    et    seq. 
ability    to   pay,   82,   83,   84, 

85 
action  for,  when  bar  to  ac- 
tion for  negligence,  92, 
93 
depending  on  cure,  81,  82 
depending  on  license,  81 
depending  on  skill  and  care, 

81,  82 
expert  testimony  as  to,  86 
liability     of    third    persons 

for,    87   et  seq. 
of  expert  witness,  93,  94 
or  gratuity,  86 
suits  to  recover,  94 
Results   of  treatment,   respon- 
sibility for,  58 
Risk,    assumptidn    of,    53,    54, 

55 
Roman  Law,  49 
Rugg,    Chief    Justice,    130 


Schools  of  medicine,  7,  41 
Services,    gratuitous,   85,   86 
Shaw,   Chief  Justice,    111 
Skill,  effect   of,   on  remunera- 
tion, 81,  82 
presumption  as  to,   51 
requirements   as   to,   27,   30, 
31,   73,   114,  115 


Skill,  requirements  as  to,  de- 
pending   on    compensa- 
tion, 32,  33,  60 
depending    on    disease    or 

injury,  33,  34 
depending  on  locality,  28, 

29,  30 
depending     on     scientific 

knowledge,  31 
specialists,  34,  35 
Society   of   Medical   Jurispru- 
dence, 9 
Specialists,     degree     of     care, 
skill    and    learning    re- 
quired of,  34,  35 
Spencer,  Herbert,  128 
Stephen,    Mr.   Justice,   115 
Stevenson,  Robert  Louis,  71 
Suggestive  therapeutics,  138 

Taft,  Ex-President,  38 
Taylor,  Dr.,   8,  21 
Testimony.    See  Evidence;  see 
Witness, 
confidential  communications, 

96  et  seq. 
expert,   1,  2,  3,  5,  6,  7,  13, 
76,  86 
compensation  for,  94,  95 
non-expert,  1 
of  negligence,  73,  74 
weight  of,  in  civil  cases,  74, 
75 
Thayer,  Judge,  37 
Therapeutics,   Suggestive,   138 
Thompson,  Judge,  90 

Wilcox,  Dr.  Reynold  Webb,  9 
Willcock,  J.  W.,  79,  142 
Witness.     See  Cross-Examina- 
tion.     Evidence,     Testi- 
mony 
confidential  communica- 

tions, 96  et  seq. 
examination  of,  2,  3,  4 
expert,  1,  12,  13,  93,  94,  95 
interested,    11 
lying,    10 
non-expert,   1 
oath  of,  4,  5 
use  of  notes  by,  16 


COLUMBIA   UNIVERSITY   LIBRARIES 


This  book  is  due  on  the  date  indicated  below,  or  at  the 
expiration  of  a  definite  period  after  the  date  of  borrowing,  as 
provided  by  the  library  rules  or  by  special  arrangement  with 
the  Librarian  in  charge. 

DATE  BORROWED 

DATE  DUE 

DATE  BORROWED 

DATE  DUE 

Uk    ^:C 

IS..' 5^,;^ 

i 

1 

C28  (1149)   lOOM 

APR  Z  0 


>2_ 


^^ 


